Berishaj v. Atty Gen USA

• Court: Court of Appeals for the Third Circuit
• Decided: August 5, 2004
• Docket: 03-1338
• Status: Published

Opinion

Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

8-5-2004

Berishaj v. Atty Gen USA Precedential or Non-Precedential: Precedential

Docket No. 03-1338

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This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. PRECEDENTIAL BRENDA M. O’MALLEY (ARGUED) LYLE D. JENTZER LYNNE R. HARRIS IN THE UNITED STATES COURT OF United States Department of Justice APPEALS Office of Immigration Litigation FOR THE THIRD CIRCUIT P.O. Box 878 _______________________________ Ben Franklin Station Washington, DC 20044 NO. 03-1338 ___________ Attorneys for Respondent

LEK BERISHAJ, ________________________ Petitioner OPINION OF THE COURT v. ________________________

JOHN ASHCROFT, ATTORNEY BECKER, Circuit Judge. GENERAL OF THE UNITED STATES Lek Berishaj, an ethnic Albanian from _______________________________ Montenegro, petitions for review of a decision of the Board of Immigration On Petition for Review of an Order of Appeals (BIA), which affirmed without the opinion the decision of an immigration Board of Immigration Appeals judge (IJ) denying him asylum and relief (Board No. A74-881-632) under the Convention Against Torture and _______________________________ Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Under Argued June 25, 2004 our caselaw, see Dia v. Ashcroft, 353 F.3d 228 (3d Cir. 2003) (en banc), it is the IJ’s Before: AMBRO, BECKER and decision that we review, no mean task here GREENBERG, Circuit Judges because the IJ’s opinion is cursory, thinly reasoned, and discusses the case without (Filed: August 5, 2004 ) any reference to the governing legal standards. Nonetheless, we understand the VISUVANATHAN IJ to have concluded that Berishaj’s RUDRAKUMARAN (ARGUED) testimony regarding past persecution was 875 Avenue of the Americas not credible; that, even taking Berishaj’s New York, NY 10001 testimony as true, country conditions in the Federal Republic of Yugoslavia (which Attorney for Petitioner 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 records are grossly out-of-date, requiring that Berishaj’s CAT claim failed because us to engage in the rather artificial exercise there was no objective evidence that a of ruling on situations that existed several return to Montenegro would expose him to years in the past, but do not exist today. torture. Here, we work from an administrative record in which the most recent country Reviewing the IJ’s decision under the conditions report is over four years out-of- “substantial evidence” standard, see id. at date. While SEC v. Chenery Corp., 318 247-50, we conclude that the IJ’s rejection U.S. 80 (1943), and the constraints of of Berishaj’s asylum claim cannot stand. process-based review of administrative First, the IJ’s adverse credibility decision making prevent us from determination has no basis in the record. supplementing a grossly out-of-date Second, the IJ misapplied the law in administrative record, they do not concluding that changed conditions in command blindness to the emerging Montenegro have obviated any persecution pattern of stale records. Considering the claim that Berishaj might once have had. rapid, frequent political changes in In such a posture, the burden of showing countries from which asylum and CAT changed country conditions is on the applicants usually come, and the government, see 8 C.F.R. 208.13(b)(1)(ii), potentially dire consequences of sending and we hold that the government must such an applicant back to his country of rebut the alien’s well founded fear of origin to face possible persecution or future persecution with specific evidence, torture on the basis of such a stale report, which it did not produce. We will we call on Congress, the Department of therefore grant the petition for review of Justice, the Department of Homeland the decision insofar as it rejected Security, and the BIA to improve the Berishaj’s asylum claim, and his related structure and operation of the system, so claim for withholding of removal. We that all may have the confidence that the leave it to the Agency to make a proper ultimate disposition of a removal case determination in the first instance of the bears a meaningful connection to the merits of those claims. With respect to merits of the petitioner’s claim(s) in light Berishaj’s CAT claim, the IJ’s decision of contemporary world affairs. passes muster (though barely), and we will deny the petition for review of the IJ’s CAT decision. I. The Administrative Record and the As we will explain in greater detail, we IJ’s Decision think this case to be a particularly apt As will become clear, the IJ’s example of a disturbing trend we often credibility determination rested on his encounter in petitions for review of the rejection of a fairly narrow slice of BIA. In many cases in which country Berishaj’s testimony. But we will discuss conditions are at issue, the administrative

2 Berishaj’s testimony in full, because his A. Berishaj’s Testimony and claims depend on aspects of it beyond the Corroborating Affidavit specific testimony on which the IJ based Berishaj is an ethnic Albanian who his adverse credibility determination. spent his youth in Montenegro, at the time CAT claims and questions of changed part of Yugoslavia.2 In the summer of country conditions are, for the most part, 1991, he went to Kosovo, a neighboring evaluated with reference to documentary province of Yugoslavia, to attend a evidence of contemporary country university that conducted classes in his conditions; questions of corroboration are native Albanian tongue. (At that time, no evaluated with reference to documentary university in Montenegro conducted evidence of past conditions. We will classes in Albanian.) Serb forces had therefore address the documentary taken control in Kosovo in 1990, and had materials in the record with a focus on officially closed the university, but it 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 proclaimed their independence on March 1991 to 2001.1 3, 1992, and Serb forces seized seventy percent of the country’s territory. War between Serbia and Bosnia continued until the Dayton Peace Accord on 1 The following chronology—which is November 21, 1995. not taken from the administrative In 1998, fighting erupted in Kosovo, record—is excerpted from the United a province of Serbia, between Serbians Nations High Commissioner for and ethnic Albanians, displacing Refugees document “A Brief History of hundreds of thousands of people. Peace the Balkans,” which is available at the talks failed, and in March 1999 NATO High Commissioner’s web site, air strikes began. In June 1999, NATO http://www.unhcr.ch. and Russian forces entered Kosovo after Yugoslavia was created following Yugoslavia accepted a peace plan. On World War I, and after World War II October 6, 2000, Milosevic conceded became a socialist federal republic defeat in a presidential election, and was comprising Bosnia and Herzegovina, placed under house arrest. He was Croatia, Slovenia, Serbia, Macedonia, handed over to the International Tribunal and M ontenegro. Slobodan M ilosevic in the Hague on June 28, 2001. was elected President of Serbia in 1989. 2 On June 25, 1991, Croatia and Slovenia The discussion in this section is taken proclaimed their independence from from Berishaj’s testimony, which for Yugoslavia, and Serb forces immediately ease of exposition we present as true. overran thirty percent of Croatian We address the IJ’s adverse credibility territory. Bosnia and Herzegovina determination in detail infra Part III.A.1.

3 continued to function underground, with cleaning the tank gun and guarding the classes held in private homes in Pristina, a tank. He was beaten at the direction of major city in Kosovo. Berishaj’s uncle, Serbian officers for singing songs in Palok, with whom Berishaj lived at the Albanian, and he stopped speaking time, was one of the leading organizers of Albanian publicly, relying on the Serbian the illegal university, and he recruited he learned while in the army. After Berishaj to find private homes in which to completing eleven months of military hold classes. Because of his activities, service, Berishaj was discharged. He Palok was arrested in 1991, and again in returned to Montenegro, then to Kosovo 1994, when he was detained and beaten for briefly to take university examinations, several days. Berishaj was arrested in and then back to his parents’ home in Pristina in the spring of 1992 for his Montenegro. assistance to the illegal university; he was In December 1993, four beaten with a rifle butt and detained p o l i c emen — appa rently milita ry overnight. Not trusting the Serbian police—came to his parents’ house at doctors at the hospital, Berishaj was midnight and took him to fight in Bosnia. treated by an Albanian doctor practicing He served again as a gunman, and was illegally, and returned to Montenegro a ordered to destroy buildings, houses, and few weeks later. shoot at the army and at Muslim civilians Shortly after returning to Montenegro, in Bosnia. Berishaj explained that he had Berishaj was inducted into the army; he no choice but to shoot civilians: “I would was sent to serve in Serbia, where he spent either, you know, shoot or [the Serbians] eleven months. He w as easily would kill me.” Ethnic Albanians in the recognizable as an ethnic Albanian, among army were not trusted to shoot without a predominantly Serbian army—“Berishaj” being under Serbian control. For example, is a well-known Albanian name; indeed, Berishaj explained, “When we were in the one Sali Berishaj was the former president tank, you know, using the gun, we would of Albania. In the army, Berishaj served have somebody behind us [a Serbian] with as a tank gunman following a three-month an automatic gun. . . . Their function was training period in which he learned to that if somebody does not obey the order operate the tank gun from instructions in to shoot with a gun, they would kill him.” Serbian. In the tank crew of three or four, Berishaj spent two months in the army this Berishaj was the lowest in rank, taking time, and escaped during the night in orders from Serbs in charge of the tank. February 1994. He returned to his parents’ Berishaj did not, in these eleven months, home in Montenegro. go to war in Bosnia. Berishaj attributed Fearing that he would be arrested and this to the Serbian officers not trusting returned to the army, Berishaj crossed Albanians enough to send them to war. illegally from Montenegro into Albania, Berishaj’s duties mostly consisted of where he spent the next fourteen months in

4 hiding at his cousin’s home. He sought, nearly four years before. His father but was unable to obtain, legal status in explained, in Berishaj’s words “that once Albania; as a result, the Albanian I left, the [Montenegrin] police came three authorities learned of him. His cousin, times and checked the house inside out fearing the Albanian police, convinced looking for me after I had escaped. At this Berishaj to return to Montenegro in April time, they asked him ‘Where is he? Where 1995. Upon returning to his parents’ home can we find him?’ And his response was in Montenegro, Berishaj learned that he he didn’t know. . . . After I left, my father was wanted by the police, and he went to was telling me that many incidents they reside with his sister, who lived in another came and checked the house inside out village several miles from his parents’ three times, and at one point were also home. The five months with his sister guarding the house overnight to see if I were spent mostly indoors, as were the would come home.” The police stopped following months, which he spent with an searching for Berishaj when his father told uncle in yet another village. them that Berishaj had left permanently. Berishaj also learned from his father that Berishaj ultimately was located by the his brother was serving a five-year Montenegrin police in September 1996, sentence for helping the Kosovar and detained for two days. They asked resistance during the war. Berishaj’s him why he deserted from the army, and sister, a naturalized American citizen, why he did not finish his studies at the confirmed in an affidavit made in late official university (i.e., the Serbian-run 1997 that she had received similar university); it was clear that the police accounts from their father, brother, and knew he had participated in the illegal sister regarding police activity at their university. Berishaj was released from parents’ home. custody apparently when an uncle fabricated a story about Berishaj needing B. Documentary Evidence in the to visit an ill family member and posted Administrative Record bail for him. Berishaj returned illegally to 1. Contemporary Country Conditions Albania, where he resided until February 1997, when he was smuggled to Belgrade, Much of the record addresses and from there to France, then Brazil, then contempo rary treatment of ethnic the United States. Albanians in Kosovo or elsewhere in Serbia; as this is not especially relevant to Since being in the United States, the situation in Montenegro, we will Berishaj has had limited contact with concentrate only on documentary evidence family members in Montenegro, fearing addressing Montenegro. We begin with that his family would be coerced by the the State Department’s 1999 Country police into revealing his whereabouts. In Reports on Human Rights Practices: January 2001, Berishaj spoke to his father Serbia-Montenegro, issued in February for the first time since leaving Montenegro

5 2000 (the “1999 Country Report”); this is Report represents that Montenegro was the latest country report available in the making progress toward democracy, administrative record. While on the one holding free and fair elections, and hand the BIA may not “‘hide behind the that1999 saw even further escape from the State Department’s letterhead’” and place federal control of Milosevic’s regime. The full and uncritical reliance on a country 1999 Country Report further states that report, Ezeagwuna v. Ashcroft, 325 F.3d while the Montenegrin government 396 (3d Cir. 2003) (quoting Li Wu Lin v. generally respected its citizens’ human INS, 238 F.3d 239, 246 (3d Cir. 2001)), rights, there were reports of extrajudicial neither is it permissible for the IJ and BIA killings by federal troops, forcible not to address the relevant country report c o n s c r i p t i o n , a n d v i o l en c e a n d in some detail. The first line of the 1999 discrim ination aga inst minor i tie s. C o u n t r y R e p o r t r e ad s : “ S e rb i a - Academic freedom is said to have been Montenegro is dominated by Slobodan respected. In early 1999, the government Milosevic,” though it goes on to note that began a program of devolving authority on Milosevic’s primary influence is over local government officials in ethnic Serbia proper (and even there, not in Albanian communities. The Yugoslav Kosovo) and less over Montenegro. Parliament passed an amnesty for draft Nonetheless, given Milosevic’s control evaders and deserters in late 1995, and the over the Serbian army and federal police, Montenegrin Parliament passed a similar the 1999 Country Report establishes that a law in late 1999. According to documents prime force in the persecution (or worse) in the record from Amnesty International, of ethnic Albanians was still in power at however, there is evidence that at least the the time the administrative record was latter law was not fully observed, as compiled.3 federal Yugoslav authorities and military police controlled the treatment of evaders On the other hand, the 1999 Country and deserters. The 1999 Country Report generally 3 We note that the final hearing before sounds of relative stability and democratic the IJ in this case was conducted in progress, but other parts of the record January 2001, by which point Milosevic suggest that events were very fluid in was no longer in power in Serbia. 1999. For example, a series of news Although this is not documented in the articles from the New York Times and administrative record, at the January reports from human rights organizations 2001 hearing in this case, the IJ did refer sugg ests that paramilitary groups to “Mr. Milosevic [being] taken out of associated with ethnic cleansing of ethnic power.” No documentary evidence in the Albanians in Kosovo had moved into administrative record discusses the effect Montenegro, perhaps at the behest of the of Milosevic’s fall on conditions in Montenegrin police. Montenegro.

6 2. Corroborating M aterials this is again consistent with Berishaj’s account. We turn now to materials in the record that could corroborate Berishaj’s accounts C. The IJ’s Decision from the early 1990s—specifically his time The IJ’s decision (which, save for at the illegal university in Kosovo and his irrelevant introductory and concluding military service from 1992 to 1994. Two remarks, is recounted in full in the pieces are worthy of note. First, Berishaj’s paragraphs that follow) begins with his story about the operation of the illegal adverse credibility determination: university in Kosovo, and police hostility to it, is perfectly corroborated by an The case at bar is afflicted by Amnesty International Report from 1994, testimony that is incredible in which is in the administrative record. This nature. The Applicant’s statements report describes the creation in 1990 and as to how he was recruited and 1991 by ethnic Albanians of “a parallel placed in a position of combat by educational system using [pre-Serbian] the Serbs while at the same time curricula,” with “lessons . . . held in adducing to an attitude of total private homes.” The report also describes disdain and bias toward the several specific episodes of police Applicant is just incredulous to the violence against ethnic Albanians on Court. This fact is dramatized and account of this parallel educational system. magnified by the Respondent’s testimony that although he was Second, and also in the administrative despised by the Serbs in the army record before the IJ, a 1992 article from he was placed in command of a the Bronx-published English-language tank. The testimony further Albanian-American newspaper Illyria developed how the Applicant profiles a young ethnic Albanian, Adem learned to operate the tank by Krasniqi, whose experience as a forced reading the instructions in it and inductee into the Serbian army closely how, albeit they were written in a parallels Berishaj’s. Krasniqi was one of language he did not understand, he many Albanian “tankers” (i.e., tank was able to familiarize with the operators or gunmen). In an attack on operation of the tank in just three Vukovar, Croatia, he was forced to move months. As fantastic and ludicrous forward in the first wave; the story quotes as that statement may appear, the Krasniqi as saying, “Behind us were the Court was dazzled and astounded Serbian irregulars uniformed as soldiers. by the declaration that although he Anyone trying to desert would be shot. was in control of the tank he had a We had two choices. Keep firing or get Serbian officer behind his back shot from people behind you.” Krasniqi pointing a gun at him at all times! also describes indiscriminate shelling, and A better script could not have been being forced to fire at innocent civilians;

7 thought about by kings of comedy a n d m a k e s h i s r et u r n to like Peter Sellers or Mel Brooks. Mon tenegro reaso nable . Montenegro has granted an This ridiculous testimony is not amnesty to deserters and draft supported by one scintilla of dodgers. Nothing in Respondent’s evidence and in addition to be arguments convinces this Court that completely absurd it borders in an his return to Montenegro would offensive and arrogant attitude place him in any type of danger at toward the Court. The Applicant’s the present time. In concluding as demeanor, throughout the sessions I do I have determined that the of testimony, was characterized by Applicant’s possibility of any an arrogant disposition in thinking f u t u r e p e r s e c u ti o n is n i l . that he deserves what he is asking Respondent’s attorney’s arguments for. that the new administration of The IJ next turned to a brief discussion e l e c t e d presid e n t V o j i s l a w of the then-curren t conditions in Kostunica is a mirror image of his Montenegro: predecessor is not persuasive nor established. The amount of time this case has been pending has made the The final substantive portion of the IJ’s Respondent’s claim even weaker. decision reiterates his adverse credibility Historically, Montenegro was determination: considered a satellite or puppet The Court has stated its opinion nation of strongman Slobodan earlier as to how skeptical the Milosovic. Under Milosovic’s Court is about the Applicant’s regime the Respondent’s position claim of p ast p erse c ution . of opposition to service in the Testimony that has been plagued by Serbian army may have had some fantastic anecdotes and validity. It was not until very uncorroborated information is very recently that the Government of difficult to accept even as plausible. Montenegro has taken an The Applicant’s case is precisely independent position with regard to affected by these characteristics the treatment of ethnic Albanians in and therefore makes it impossible the region. Once the apparent for the Court to accord it any defeat of the Milosovic credence. administration, the Government of Montenegro has shown signs of The BIA affirmed this decision without self-determination. This change of opinion. events, contrary to the Applicant’s position benefits the Respondent

8 II. Standard of Review determination based upon the administrative record. If a Because the BIA affirmed the decision reasonable fact finder could make a of the IJ without opinion, see 8 C.F.R. § p a r t i c u l ar f i n d i n g o n t h e 3.1(e)(4), the decision of the IJ is the final administrative record, then the agency determination, which we are called finding is supported by substantial upon to review. See Dia, 353 F.3d 228. evidence. Conversely, if no We have jurisdiction under 8 U.S.C. § reasonable fact finder could make 1252 over this timely petition for review of that finding on the administrative a final determination of the BIA. record, the finding is not supported We review the Agency’s findings of by substantial evidence. fact—such as the IJ’s credibility 353 F.3d at 249. determinations, his findings on the CAT claim, and his findings regarding changed country conditions— under 8 U.S.C. § III. Berishaj’s Application for Asylum 1252(b)(4)(B), which provides that “administrative findings of fact are A. The Asylum Claim conclusive un les s any reasonable 1. The Adverse Credibility adjudicator would be compelled to Determination conclude to the contrary.” As we explained in Dia, we have “read this Berishaj applied for asylum and standard to require that the agency support withholding of removal based on past its findings with substantial evidence, as persecution and a well-founded fear of articulated by the Supreme Court in INS v. future persecution if he is removed to Elias-Zacarias, 502 U.S. 478, 481-84 Montenegro. In Gao v. Ashcroft, 299 F.3d [(1992)].” 353 F.3d at 247; see also 266 (3d Cir. 2002), we laid out the Sevoian v. Ashcroft, 290 F.3d 166, 171 (3d statutory framework for asylum claims and Cir. 2002) (“[The Illegal Immigration the relevance of adverse credibility Reform and Immigrant Responsibility Act] determinations to the asylum inquiry: codifies the language the Supreme Court A grant of asylum under § used in Elias-Zacarias to describe the 1158(b)(1) of the Immigration and su b st a n ti al evid ence standard in Nationality Act (INA) allows an immigration cases.”). We concluded in otherwise removable alien to stay Dia that in the United States. The Attorney the question whether an agency General “may” grant asylum to an determination is supported by alien who demonstrates that he/she substantial evidence is the same as is a refugee: a person unable or the question whether a reasonable unwilling to return to the country of fact finder could make such a that person’s nationality or habitual

9 res i d e n c e b e c a u s e of past meet this burden, if “credible.” 8 persecution or because of a C.F.R. § 208.13(a), Chand v. INS, well-founded fear of future 222 F.3d 1066, 1077 (9th Cir. persecution on account of his race, 2000). In some cases the INS may religion, nationality, membership in require documentary evidence to a particular social group, or support a claim, even from political opinion. See INA § otherwise credible applicants, to 208(b)(1), 8 U.S.C. § 1158(b)(1) meet their burden of proof. ( r e q u iring a syl um applicant Abdulai [v. Ashcroft], 239 F.3d conform to definition of refugee); [542,] 554 [(3d Cir. 2001)]. [§] 101(a)(42)(A), 8 U.S.C. § . . . . [A]dverse credibility 1 1 0 1 ( a ) (4 2 ) (A ) ( prov idin g determinations are reviewed for definition of refugee). In order to substantial evidence. establish eligibility for asylum on Balasubramanrim v. INS, 143 F.3d the basis of past persecution, an 157, 161 (3d Cir. 1998). . . . applicant must show: “(1) an Adverse credibility determinations incident, or incidents, that rise to based on speculation or conjecture, the level of persecution; (2) that is rather than on evidence in the ‘on account of’ one of the record, are reversible. Salaam v. statutorily-protected grounds; and INS, 229 F.3d 1234, 1238 (9th Cir. (3) is committed by the government 2000). G e n e r a l l y, m i n or or forces the government is either i n c o n s i s te n c i e s a n d m i n o r ‘unable or unwilling’ to control.” admissions that “reveal nothing Navas v. INS, 217 F.3d 646, 655 about an asylum applicant’s fear for (9th Cir. 2000). his safety are not an adequate basis An applicant can demonstrate for an adverse credibility finding.” that she has a well-founded fear of Vilorio-Lopez v. INS, 852 F.2d future persecution by showing that 1137, 1142 (9th Cir. 1988). The she has a genuine fear, and that a discrepancies must involve the reaso nable person in her “heart of the asylum claim.” circumstances would fear Ceballos-Castillo v. INS, 904 F.2d persecution if returned to her native 519, 520 (9th Cir. 1990). country. Elnager v. INS, 930 F.2d Gao, 299 F.3d at 271-72. Furthermore, an 784, 786 (9th Cir. 1991). Aliens alien who offers credible testimony have the burden of supporting their regarding past persecution is presumed to asylum claims through credible have a well-founded fear of future testimony. Abdille v. Ashcroft, 242 persecution. See Abdulrahman v. F.3d 477, 482 (3d Cir. 2001). Ashcroft, 330 F.3d 587, 591-92 (3d Cir. Testimony, by itself, is sufficient to 2003) (citing 8 C.F.R. § 208.13 (“An

10 applicant who has been found to have service as “just incredulous [sic] to the established such past persecution shall also Court,” as “fantastic and ludicrous,” and be presumed to have a well-founded fear “astound[ing],” worthy of “kings of of persecution on the basis of the original comedy like Peter Sellers or Mel Brooks.” claim.”)). The IJ’s comments are not only intemperate but singularly unhelpful. At Here, if the IJ’s adverse credibility best they amount to a finding that determination is supported by substantial Berishaj’s testimony was implausible or evidence, Berishaj’s asylum claim would inherently improbable when, as we will arguably fail because the IJ refused to demonstrate, the testimony appears credit significant testimony at the core of eminently reasonable. At all events, the Berishaj’s story of past persecution— his IJ’s comments are not tethered to the being subjected to persecution by Serbs on record, owing what little support they have account of his status as an ethnic Albanian. to hyperbole and appeals to popular We set aside for the time being that the IJ culture—two utterly inappropriate bases failed altogether to address Berishaj’s for an asylum decision. testimony about how he was treated o u t s id e t h e m i l it a r y. That The BIA has of course held, and we testimony—from his civilian have agreed, that an adverse credibility life—arguab ly could indepen dently determination may properly be based on support his asylum claim. In light of our implausibility or inherent improbability. conclusion that the IJ’s adverse credibility See In re S-M-J-, 21 I. & N. Dec. 722, determination is not supported by 729-30 (BIA 1997) (holding that an substantial evidence, we need not address adverse credibility determination may be whether the IJ’s adverse credibility “appropriately based on inconsistent determination with respect to Berishaj’s statements, contradictory evidence, and account of his military service could inherently improbable testimony . . . in properly be used to reject his accounts of view of the background evidence on arguable persecution as a civilian. country conditions”); Dia, 353 F.3d at 249 (“Where an IJ bases an adverse credibility As noted, we conclude that the IJ’s determination in part on ‘implausibility[,]’ adverse credibility determination is not . . . such a conclusion will be properly supported by substantial evidence. In grounded in the record only if it is made terms of the language we used in Gao, the against the background of the general IJ’s credibility determination was “based country conditions.” (citing Gao, 299 F.3d on speculation [and] conjecture, rather at 278-79; He v. Ashcroft, 328 F.3d 593, than on evidence in the record.” 299 F.3d 603 (9th Cir. 2003))). As these cases at 272 (citing Salaam v. INS, 229 F.3d illustrate, however, there must be record 1234, 1238 (9th Cir. 2000)). Without support and specific, cogent reasons for further elaboration, the IJ simply rejected such an adverse credibility determination. Berishaj’s testimony regarding his military

11 The en banc Court in Dia emphasized Hartooni v. INS, 21 F.3d 336, 342 exactly this point in rejecting the adverse (9th Cir.1994))). credibility determination made by the IJ in If the IJ’s conclusion is not that case: based on a specific, cogent reason, “[W]hile we defer to the IJ on but, inste a d, is ba se d on credibility questions, that deference speculation, conjecture, or an is expressly conditioned on support otherwise unsupported personal in the record,” Nagi El Moraghy [v. opinion, we will not uphold it Ashcroft], 331 F.3d [195,] 205 [(1st because it will not have been Cir. 2003)], and “[d]eference is not supported by such relevant due where findings and conclusions evidence as a reasonable mind are based on inferences or would find adequate. In other p re s u m p t i o n s that are n ot words, it will not have been reasonably grounded in the record.” supported by substantial evidence. Id. at 202 (citation and internal Id. at 249-50 (some alterations in original). quotation marks omitted); see also Abdulrahman, 330 F.3d at 597 None of the IJ’s reasons for finding (stating that “substantial deference” Berishaj incredible withstand scrutiny in to a finding is to be “afforded . . . light of the record. We address them where it is grounded in evidence in seriatim. Most obviously wrong is the IJ’s the record”). To this end, it is clear conclusion that Berishaj’s testimony about that “[a]dverse credibility his experience in the military was “not determ inations based on supported by one scintilla of evidence.” speculation or conjecture, rather As we have already described, see supra than on evidence in the record, are Part I.B.2, there is at least one strikingly reversible,” Gao, 299 F.3d at 272, similar published account from another and that an IJ must support her e thnic Alb ania n in the Serb ian adverse credibility findings with army—Adem Krasniqi’s story as published “specific[,] cogent reasons.” Id. at in Illyria. Irrespective of Illyria’s 276; Abdulrahman, 330 F.3d at reliability vel non as an unbiased source of 597; see also Secaida-Rosales [v. news from the Balkans, the article was in Ashcroft], 331 F.3d [297,] 307 [(2d the administrative record and the IJ was Cir. 2003)] (“When an IJ rejects an obliged to address it. Moreover, the IJ is applicant’s testimony, the IJ must in no position to comment from his own provide ‘specific, cogent’ reasons experience on the plausibility of the cruel for doing so.”); He, 328 F.3d at 595 practices employed in one of the most (“[T]he IJ and BIA must offer a heinous conflicts of the modern era. If ‘specific, cogent reason for any anything, the tactic of forcing one ethnic s t a te d d i s b e li e f .’” (quotin g minority to kill another is entirely

12 consistent with multiparty ethnic warfare, We also note the basic misstatement of and there is no substantial evidence on the record in the IJ’s description of which to conclude otherwise. It seems Berishaj’s testimony—Berishaj never eminently plausible that the Serbians testified that he was “placed in command” would require the Albanians to be the ones of the tank, or “in control of the tank”; he to shoot the Bosnians, and that they would testified that he was at the bottom of the enforce that role in the manner chain of command. There is no evidence described—by having a gunman behind contra. In sum, nothing of the IJ’s adverse each Albanian. To describe this as a Mel credibility determination survives even Brooks scenario seems to us bizarre. basic scrutiny, and we cannot accept the IJ’s determination as supported by We also cannot understand the IJ’s substantial evidence incredulity at Berishaj’s ability to learn enough Serbian to clean and operate a tank The IJ also rejected Berishaj’s gun as a low-ranking soldier. Berishaj testimony on the ground that it was testified that he did not find Serbian “plagued by . . . uncorroborated difficult to learn, and that he had to stop information.” To the extent that the IJ speaking Albanian publicly—wh ich meant that Berishaj’s account of his suggests that he was effectively immersed military experience could not be squared in Serbian for several months. These are with the experiences of other ethnic both candid and credible statements that Albanians in the Serbian army in the mid- the IJ did not address. What is more, even 1990s, we think our discussion above though the IJ’s hearing in January of 1998 amply refutes any notion that Berishaj’s (no more than a year after Berishaj arrived experience was implausible. To the extent in the United States) was conducted with that the IJ complained of the absence of an Alb anian interpreter, Berishaj testimonial or documentary materials in repeatedly demonstrated that he was the record to support aspects of the factual listening to the questions in English, and account given by Berishaj, we are at a loss not waiting for the interpreter’s translation. to com preh end th e IJ— requ iring At times, Berishaj even responded in corroborative evidence in this situation English. English is a difficult language to would run counter to our precedent, BIA learn, but Berishaj apparently has some precedent, and common sense. facility for picking up languages, and this In Abdulai, 239 F.3d at 554, we held only enhances the credibility of his claim that “the BIA may sometimes require to having learned basic Serbian in a few otherwise-credible applicants to supply months. In light of all this, we do not see corroborating evidence in order to meet how a reasonable factfinder could their burden of proof.” In so doing, we conclude that his claim that he learned refused to hold invalid the rule of enough Serbian to clean and operate the corroboration laid down by the BIA in S- tank gun was not worthy of belief. M-J-, 21 I. & N. Dec. 722. We explained

13 that S-M-J- “contemplates a three-part founded fear of future persecution. See 8 inquiry: (1) an identification of the facts C.F.R. § 208.13(b)(1); Abdulrahman, 330 for which it is reasonable to expect F.3d 587. But 8 C.F.R. § 208.13(b)(1)(i) corroboration; (2) an inquiry as to whether also provides that the applicant has provided information an immigration judge . . . shall deny corroborating the relevant facts; and, if he the asylum application of an alien or she has not, (3) an analysis of whether found to be a refugee on the basis the applicant has adequately explained his of past persecution if [it] is found or her failure to do so.” Abdulai, 239 F.3d by a preponderance of the evidence at 554 (internal quotation marks omitted); [that] [ t] he re ha s b e e n a see also Mulanga v. Ashcroft, 349 F.3d fundamental change in 123, 133-37 (3d Cir. 2003). circumstances such that the The IJ plainly did not heed even the applicant no longer has a well- first step, which is simple common sense: founded fear of persecution in the There are matters on which it is plainly applicant’s country of nationality . unreasonable to expect any kind of . . on account of race, religion, corroboration. Wartime persecution is nationality, membership in a surely among these matters— exigency, particular social group, or political strife, and destruction all conspire to opinion destroy what records there might once The burden of proof in a changed-country- have been. Evidence documenting conditions rebuttal is on the government. military persecution and abuse is rarely 8 C.F.R. § 208.13(b)(1)(ii). made in the first place. Testimony is nearly impossible to come by because of Other Courts of Appeals have death and dispersal in the ranks. The IJ recognized a limitation on the inferences had no grounds on which to expect that may be drawn from evidence of corroboration from Berishaj. changed country conditions. The First, Seventh, Ninth, and Tenth Circuits agree 2. Changed Country Conditions that evidence of changed country The IJ’s alternative reason for rejecting conditions can successfully rebut an Berishaj’s asylum claim was that country alien’s fear of future persecution based on conditions in Montenegro had improved past persecution only if that evidence by 2000 to the point that Berishaj’s stories addresses the specific basis for the alien’s of past persecution—even if they were f e a r of per s e cution; ge ne r aliz ed credible—no longer provided a basis for a improvements in country conditions will well-founded fear of future persecution. not suffice as rebuttals to credible As we have noted, an alien who offers testimony and other evidence establishing credib le tes tim on y regarding past past persecution. The other Courts of persecution is presumed to have a well- Appeals, including this Court, appear to

14 have had no occasion to consider the Ashcroft, 338 F.3d 180, 184 (3d Cir. 2003) matter. (citing Balasubramanrim, 143 F.3d at 161). As the Court of Appeals for the Ninth Circuit has explained, “[the] INS is To the extent that the IJ proposed to obligated to introduce evidence that, on an proceed on an interpretation of 8 C.F.R. § individualized basis, rebuts a particular 208.13(b)(1) that departs from the one applicant’s specific grounds for his stated by our sister Courts of Appeals, the well-founded fear of future persecution. IJ offered no reasoning and cited no Information about general changes in the autho rity— not even the pertinent country is not sufficient.” Rios v. regulation itself. Accordingly, we have no Ashcroft, 287 F.3d 895, 901 (9th Cir. basis on which to conclude that the IJ’s 2002) (internal quotation marks and reading and application of the regulation citations omitted); accord Krastev v. INS, was “reasonable” and therefore entitled to 292 F.3d 1268, 1276-77 (10th Cir. 2002) deference under Chevron U.S.A., Inc. v. (granting petition for review, noting that Natural Resources Defense Council, 467 the country report relied on by the BIA did U.S. 837 (1984). Cf., e.g., Valansi v. nothing to rebut petitioner’s fear from Ashcroft, 278 F.3d 203, 208-09 (3d Cir. local, not national, authorities in 2002) (quoting, inter alia, Lewis v. INS, Bulgaria); Gailius v. INS, 147 F.3d 34, 36 194 F.3d 539, 544 (4th Cir. 1999) (“If we (1st Cir. 1998) (“It is well established that conclude that Congress has not directly general changes in country conditions do addressed the question at issue in a statute not render an applicant ineligible for or its intent is ambiguous, we must defer to asylum when, despite those general the Board’s interpretation of the statute changes, there is a specific danger to the provided it is not an unreasonable one.” applicant.” (citing Fergiste v. INS, 138 (internal citations and quotation marks F.3d 14, 19 (1st Cir. 1998)); Kaczmarczyk omitted))). v. INS, 933 F.2d 588, 593-95 (7th Cir. Subject to our discussion of the 1991) (explaining that, though it staleness of the country report in the appropriately rebutted petitioners’ fear of administrative record here, the IJ’s future persecution in that case, the BIA reliance on changed country conditions could not use the election of Solidarity was only in part supported by substantial Party members in Poland to reject all evidence. Substantial evidence does asylum claims by Polish nationals). We support the IJ’s conclusion that Berishaj agree with these cases and apply their could no longer have an objectively precepts to the case before us. The rule is reasonable fear of future persecution in the a natural corollary of the more general military—after all, as even the 1997 State proposition that the IJ is required to D e p a r t m e n t Co untr y R e p o r t f or consider the record as a whole in ruling on Serbia/Montenegro notes, the war in an alien’s claim. See, e.g., Tarrawally v. Bosnia ended with the 1995 Dayton Peace

15 Accord, and the Yugoslav parliament had insuf f ic ient is the go vern men t’s approved an amnesty for those who had observation (not relied on by the IJ, we avoided military service between 1991 and note) that ethnic Albanians participate in 1995. While there were scattered reports the political process in Montenegro and of forcible conscription, it was clear by have won seats in parliamentary elections. 2000 that this was the exception. There may be specific reasons to think that Berishaj’s fear of persecution is no longer On the other hand, nothing in the reasonable, but the IJ offers none, and we country reports, or elsewhere in the record, will not scour a 700-plus page record (well rebuts Berishaj’s fear of persecution at the over half of which is devoted to hands of Montenegrin police authorities. documentary materials) for evidence Berishaj testified that the police had come unnoticed and unanalyzed by the IJ to to his parents’ home looking for him after uphold the IJ’s decision. The burden of he had left Montenegro, and that his proof in a changed-country-conditions brother had been put in jail. Berishaj’s rebuttal is squarely on the government, and sister corroborated Berishaj’s account of no reasonable factfinder could conclude his parents’ report of the police searches. that the government has carried its burden The IJ’s extremely general observation of presenting specific evidence to rebut that, in the wake of Milosevic’s Berishaj’s presumed well-founded fear of withdrawal of influence over Montenegro, future persecution. “the government of Montenegro has shown signs of self-determination” does In sum, substantial evidence does not nothing to refute Berishaj’s claims of support the IJ’s rejection of Berishaj’s police-initiated persecution.4 Similarly claim of persecution by Montenegrin police authorities; we will therefore grant his petition for review of the IJ’s 4 Berishaj also testified at length about disposition of his asylum claim. We do how he believed the new leader of not hold that Bershaj’s asylum claim must Montenegro in 2001, Milo Djukonovic, succeed; it may be that his objective fear to be closely allied with Milosevic, even of future persecution is rebutted by though the latter was no longer in power. evidence in the record, but we certainly The IJ did not address the effects of will not mine the record to invent our own Djukonovic’s government on conditions reasons to reject Berishaj’s application. It in Montenegro, and in view of the may also be that the events of which limited administrative record and Berishaj complains do not amount to confused (dare we say Balkanized) state persecution, but it would be manifestly of political affairs in the region, we are inappropriate for us, rather than the unable to say whether Berishaj’s assessment is correct. If anything, the IJ’s failure to specifically address the Montenegro supports granting the post-M ilosevic political situation in petition for review.

16 Agency, to undertake that inquiry in the record are three or four years old by the first instance. See INS v. Ventura, 537 time the petition for review comes before U.S. 12 (2002). Finally—as we discuss in us, and they frequently do not fairly reflect greater detail infra Part III.B—it may be what our knowledge of world events that the passage of considerable time since suggests is the true state of affairs in the the original agency disposition will allow proposed country of removal, or the region the administrative record to be embracing it. It almost goes without supplemented in a way that sheds more saying that, in the troubled areas of the light on Bershaj’s claim for asylum. planet from which asylum claims tend to c o m e , t h e pa c e o f c h a n g e is B. The Trouble with Stale rapid—oppressive regimes rise and fall, Administrative Records and conditions improve and worsen for It is a salutary principle of vulnerable ethnic, religious, and political administrative law review that the minorities. As a consequence, we become reviewing court act upon a closed record. like astronomers whose telescopes capture This modus procedendi secures to an light rays that have taken millions of years administrative agency the necessary to traverse the cosmos, revealing things as measure of authority and discretion within they once were, but are no longer. But its sphere of special competence, by unlike astronomers, who can only preventing undue interference by speculate about what is happening at this generalist courts that are charged only with moment in a far-off galaxy, we often know ensuring procedural regularity in the very well what has happened in the years agency’s actions. This in turn translates to since an administrative record was long-term stability and predictability in compiled. outcomes in matters within the agency’s As we have suggested above, the expertise. While the principle yields good process-based review of agency actions is, results in most cases, in the area of asylum in theory at least, just that—process-based, law, where claims are heavily dependent without regard to the merits. That should on country conditions, it can become an make it easier, not harder, to judge long- albatross. More specifically, the dispute cold records. However, in contrast to the often centers on the government’s traditional administrative law case, this assertion, based upon a State Department type of review can give rise to potentially Country Report, that conditions have so devastating consequences to an applicant changed from those represented in the who faces the possibility of persecution (or asylum application that there is no longer worse) if he is removed. a basis for the alien’s claim of persecution in the country of proposed removal. This case is a good example of how much can change in the time between the It has become common that those creation of the administrative record country reports in the administrative before the IJ and the judgment of this

17 Court. On the one hand, Slobodan at the illegal university in Kosovo, the Milosevic is now gone from the region, the State Department notes that th e Federal Republic of Yugoslavia no longer government in Kosovo “did not restrict exists, and Berishaj’s native Montenegro is access to the Internet or academic now within the recently formed loose freedom.” But this 2003 Country Report is federation of Serbia and Montenegro. On not part of the administrative record. the other hand, Berishaj claims—at least as There are some applicants to whom our of his testimony in early 2001—that the concerns simply do not apply— applicants leaders in power are in practice “mirror from countries where conditions have not image[s]” of Milosevic. Four-year-old changed significantly for the better or c o u n t r y r e p o r t s a r e s in g u l a r l y worse in many years. And in other unenlightening when faced with this kind countries, the flux of world events is too of situation. great to hope for perfect, up-to-date Specific to Berishaj’s fear of decisions in every immigration case. persecution—we are looking now to the Surely, however, we can do much better State Department’s 2003 Country Reports than we are doing now, especially in cases on Human Rights Practices: Serbia and from volatile c ountries and with Montenegro, released in February 2004, exceptionally stale records. The precise which we have downloaded from the State problem is not just that the administrative Department’s web site (the “2003 Country records in so many cases are out-of-date Report”)—we note that police occasionally (though that is a contributing factor), but beat suspects during arrest and detention, concomitantly that we do not have a but there has been generally improved r e a so n a b l y r e c e n t f i n a l a g e n c y respect by the police for human rights. determination to review. It is one thing to Recently enacted criminal procedure supplement the record before us; it is quite reforms are aimed toward eliminating another to decide a case based on this arbitrary arrest and detention, and the expanded record. Montenegrin Helsinki Committee (HCM), We are aware that the Court of Appeals a recognized human-rights monitor, did for the Seventh Circuit apparently takes not record any incidents of arbitrary arrest judicial notice of post-final-agency- or detention during 2003. In the cases determination developments, in the form where arrest did not lead to prosecution, of new country reports, and at times rests the HCM did not find (in contrast to its disposition on those developments. previous years) any political, ethnic, or See, e.g., Pelinkovic v. Ashcroft, 366 F.3d religious motivation by the police. Ethnic 532, 540-41 (7th Cir. 2004) (taking Albanians participate in the political judicial notice that country conditions for p r o c e s s , a n d t h o u g h t h ey a re e thnic Albanians in Serbia and proportionately underrepresented, they do Montenegro in 2004 are much-improved have seats in the Montenegrin Parliament. over conditions in the early 1990s). This Finally, with respect to Berishaj’s troubles

18 practice might go a long way toward and 8 C.F.R. § 1003.2 (permitting an alien solving the problem we face, but with all or the government to move the BIA to respect we are unable to square this reopen proceedings, and authorizing the practice with the clear command from SEC BIA to do so sua sponte). Indeed, both the v. Chenery Corp., 318 U.S. 80 (1943), that statute and regulation seem to explicitly courts reviewing the determination of an contemplate the situation we comment on administrative agency must approve or here; they permit reopening of asylum reject the agency’s action purely on the proceedings “based on changed country basis of the reasons offered by, and the conditions arising in the country of record compiled before, the agency itself. nationality or the country to which Moreover, we are not especially sanguine removal has been ordered.” 8 U.S.C. § about the Seventh Circuit’s relaxed 1229a(c)(6)(C)(ii); see also 8 C.F.R. § approach to agency review. It not only 1003.2(c)(3)(ii) (permitting reopening carries with it the potential for wholesale “based on changed circumstances arising relitigation of many immigration-law in the country of nationality or in the claims, but the Courts of Appeals are ill- country to which deportation has been equipped to receive supplementary ordered”). Counsel for aliens generally evidence. At all events, the asylum seem to be zealous in pursuing these claimant should have the opportunity to motions to reopen when appropriate. But challenge the updated country report that if this panel had to characterize the posture the government would rely on. of petitions before it for review of the BIA on an outdated record, we would say that Congress could, of course, modify the in the majority, country conditions had rules normally applicable to petitions for improved, weakening the alien’s case for review of a final decision of the BIA relief. Accordingly, we encourage the without scrapping the strictures of Department of Justice to adopt a policy administrative agency review altogether. that encourages its attorneys to file Congress could require the Courts of motions to reopen when the adjudication Appeals, in their sound discretion, on of an applicant’s claim would benefit from motion or sua sponte, to grant petitions for an updated administrative record. The review of the BIA, and remand when it device of the motion to reopen is far from appears from judicially noticeable perfect, though, as it may additionally materials that the record compiled before delay an already protracted process. the agency does not generally reflect contemporary country conditions. We come at last to the one actor not directly discussed so far: the BIA. The Better yet, the parties to these trigger for the recent spate of out-of-date proceedings might take advantage of the records is, we suspect, the streamlining procedures in 8 U.S.C. § 1229a(c)(6) regulations noted above, which permit the (permitting aliens to move to reopen BIA to summarily affirm an IJ’s decision proceedings on the basis of “new facts”) without issuing its own opinion. See 8

19 C.F.R. § 3.1(e)(4). The natural—though Setting aside our perplexity at how the surely unintended—consequence of the BIA apparently thought the IJ’s opinion streamlining regulations is summary worthy of being the “final agency affirmance by the BIA of stale, backlogged determination,” we do not understand why decisions by IJs. When it does so, the BIA the BIA did not intervene to supplement may have shirked its role and duty of the record in a weak case, arising out of a e n s u r in g t h a t th e f inal a g e n cy highly volatile and evolving region of the determination in an immigration case is world. The streamlining regulations exist reasonably sound and reasonably current. to save an overburdened BIA from The decision here on review is neither, and unnecessary and redundant tasks. They are it is an embarrassment to the Agency on not a license for the BIA to say “not our multiple levels. The “reasoning” of the IJ problem.” Outdated adm inistrative is open to ridicule, as we think our records are the BIA’s problem, at least as discussion in Part III.A illustrates; and the things now stand, and the BIA needs to administrative record is a hoary relic: For confront them. We therefore call on the example, the most recent country report BIA to adopt—by opinion, regulation, or was thirty-five months out-of-date at the otherwise—policies that will avoid the time the BIA rendered its decision, and as Court of Appeals having to review of this writing, is fifty-four months out-of- administrative records so out-of-date as to date.5 Though the en banc Court in Dia verge on meaningless. approved the streamlining regulations over In view of this discussion, we direct the a statutory and Constitutional challenge, it Clerk of the Court to send a copy of this does not follow that the regulations are not opinion, calling particular attention to this subject to misuse and even abuse. Part III.B, to the Chair, Ranking Member, Chief Majority Counsel, and M inority 5 Of course, it is not strictly the Counsel of the Senate Committee on the chronological age of the administrative Judiciary, and the Chair and Ranking record that concerns us here; there are Member of the Subcommittee on old records that may still reflect Immigration, Border Security and contemporary conditions (as, for Citizenship; to the Chair, Ranking example, in a country that has been ruled Member, Chief Majority Counsel, and for several decades by the same dictator), Minority Counsel of the House Committee and there are younger records that may on the Judiciary, and the Chair and not reflect contemporary conditions (as, Ranking Member of the Subcommittee on for example, in a country that Immigration, Border Security, and Claims; experienced a recent coup d’état). But to the Attorney General of the United generally speaking, the chronological age States, the Assistant Attorney General for of the record is a good rough proxy for the Civil D ivision, United States how well the record reflects Department of Justice, and the Deputy contemporary conditions. Assistant Attorney General in charge of

20 the Office of Immigration Litigation; to the record as a whole does not show that the Secretary of Homeland Security and Berishaj is more likely to be tortured than the General Counsel of the Department of not if removed to Montenegro . Homeland Security; and to the Chair of the Preliminarily, we note that Berishaj’s own Board of Immigration Appeals. testimony—whether credible or not—has nothing to do with his CAT claim; CAT claims are entirely concerned with the IV. Berishaj’s Application for Protection objective likelihood of torture in the Under the CAT future, and Berishaj’s testimony did not address contemporary treatment of An applicant for relief under the CAT disfavored persons in Montenegro in any must show that it is “more likely than not” particularized way. that he would be tortured in the country of removal. See Wang v. Ashcroft, 368 F.3d The balance of the record describes 347, 348 (3d Cir. 2004) (quoting 8 C.F.R. mistreatment and indignities, but there is § 1208.16(c)(2) (2004)); see also Dia, 353 scant evidence—let alone compelling F.3d at 233 n.1. It is the alien’s burden to evidence—that it is more likely than not show this, and objective evidence is that Berishaj would be tortured if removed required. See Sevoian, 290 F.3d at 175. to Montenegro. To be sure, the record The government simply argues that suggests that, at the time of its making, Berishaj’s CAT claim fails because the IJ there was political instability in the found him not credible, and it was only his fledgling Federal Republic of Yugoslavia own testimony that formed the basis for (many newspaper articles in the record the objective likelihood of being tortured. attest to this), and that Serbs continued to Berishaj counters that the IJ’s analysis of perpetrate abuses and massacres in Kosovo the CAT claim is so cursory that it is (this is well-chronicled in the 1999 impossible to tell whether (1) the IJ Country Report). But the former does not, thought that a CAT claim could not stand of course, amount to torture, and the latter if the asylum claim fell, or (2) the IJ was in Kosovo, not Montenegro. As for analyzed the country conditions evidence Montenegro itself, there are reports of and concluded that it did not support a extrajudicial killings perpetrated by the CAT claim. The first alternative would be Yugoslav army, but such action seemed to a legal error, and would be grounds for be outside of government control or granting the petition because asylum and direction, and at all events, was not “more CAT claims are “analytically separate.” likely than not” to be the fate of a See Zubeda v. Ashcroft, 333 F.3d 463, 476 Montenegrin like Berishaj. There was also (3d Cir. 2003) (quoting Kamalthas v. INS, forcible conscription of ethnic Albanians 251 F.3d 1279, 1283 (9th Cir. 2001)). in Montenegro, but again, this is not torture. Most troubling perhaps is that a We think the better reading of the IJ’s human rights group, the International decision to be the second alternative—that Crisis Group, claims that as of 1999,

21 “Yugoslav forces ha[ve] undertaken the petition for review with respect to limited ethnic cleansing campaigns Berishaj’s claim under the CA T. We directed against ethnic Albanians in direct the Clerk of the Court to send copies northern Montenegro.” Similar reports are of this opinion to the officers and scattered throughout the administrative legislators identified in Part III.B above. record. Ultimately, even if this activity amounts to torture in some instances, there is no suggestion that it is nearly frequent enough to compel the conclusion that Berishaj himself would more likely than not suffer torture upon removal to Montenegro. Thus we must deny the petition for review of Berishaj’s CAT claim. We also note that our observations regarding stale administrative records, see supra Part III.B, can apply with similar force to claims for protection under the CAT, even though in this particular case the CAT issue is not presented in as stark a relief as the asylum issue.

V. Conclusion For the foregoing reasons, we will grant the petition for review, and vacate the IJ’s decision with respect to Berishaj’s asylum claim. Because the IJ’s disposition of Berishaj’s claim for withholding of removal rested on the same grounds that we have found insufficient to support his rejection of Berishaj’s asylum claim, we will also grant the petition for review, and vacate the IJ’s decision, with respect to Berishaj’s claim for withholding of removal. See Mulanga, 349 F.3d at 132 (describing relationship between asylum claims and claims for mandatory withholding of removal). We will deny