Saidou Dia v. John Ashcroft, Attorney General of the United States

353 F.3d 228

• Court: Court of Appeals for the Third Circuit
• Decided: December 30, 2003
• Docket: 02-2460
• Status: Published

Opinions

OPINION OF THE COURT

RENDELL, Circuit Judge.

TABLE OF CONTENTS

I. THE STREAMLINING REGULATIONS.234

A. Background.234

B. Statutory and Regulatory Scheme.236

C. Constitutional Challenges.238

II. THE AGENCY’S DENIAL OF RELIEF.245

A. Dia’s Testimony .245

B. Burden and Standard of Review.247

C. The Immigration Judge’s Decision .250

1. Past Persecution.251

2. Procurement of a Passport and Visa.256

3. Future Persecution.259

III. CONCLUSION.260

Judge Rendell filed the opinion of the Court in which Chief Judge Scirica and Judges Nygaard, Barry, Fuentes, and Smith joined amd Judges McKee, Ambro and Becker joined as to Part II. Judge Alito, joined by Judges Solviter and Roth, filed an opinion concurring as to Part I and dissenting as to Part II. Judge Sta-pleton filed an opinion dissenting, in which Judges McKee, Ambro and Becker joined. Judge McKee filed an opinion concurring as to Part II.

In 2001, the Immigration and Naturalization Service (INS) charged Saidou Dia, a native of the Republic of Guinea, with removability for illegal entry into the United States. Dia conceded removability but applied for relief, seeking asylum, withholding of removal, and relief under the United Nations Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment.¹ Dia alleged that he had been, and would be, persecuted in Guinea due to his actual and imputed political opinions. The Immigration Judge (IJ) rejected Dia’s allegations, finding that she was “not convinced that [Dia] has suffered past persecution” or that Dia would be persecuted and/or killed if he returned to Guinea. The IJ based her conclusion solely on her determination that Dia was not credible. Dia appealed to the Board of Immigration Appeals (BIA), which summarily affirmed the IJ’s decision under its streamlining regulations. This petition for review followed. Our jurisdiction arises under 8 U.S.C. § 1252.

Two issues are before the court for consideration en banc:

First, we will review whether the streamlining regulations promulgated by the Attorney General are either inconsistent with the INA, or violative of Dia’s due process rights under the Fifth Amendment. See U.S. Const, amend. V.

Second, we will review the adverse credibility determination made by the Immigration Judge and summarily affirmed by the BIA.

As to the first issue, we determine that the streamlining regulations are valid.

As to the second issue, however, we conclude that the IJ’s analysis of Dia’s credibility was based on reasoning that was at best unexplained and at worst speculative. Accordingly, it was not supported by substantial evidence.

We will grant the petition for review, vacate the order, and remand to the BIA to give the IJ the opportunity to explain or bolster her analysis.

I. THE STREAMLINING REGULATIONS

In upholding the IJ’s determination denying Dia relief from removal, the BIA did not issue an opinion, but, instead, issued an “affirmance without opinion” (AWO) under its streamlining regulations. See 8 C.F.R. § 3.1(a)(7) (2002). The streamlining regulations have recently been the subject of many unsuccessful attacks. See, e.g., Khattak v. Ashcroft, 332 F.3d 250, 253 (4th Cir.2003) (rejecting the argument that the regulations are “impermissibly retroactive”); Albathani v. INS, 318 F.3d 365, 377 (1st Cir.2003) (rejecting a due process challenge); Capital Area Immigrants’ Rights Coalition v. United States Dep’t of Justice, 264 F.Supp.2d 14, 39 (D.D.C.2003) (rejecting a challenge under the Administrative Procedure Act). Dia, with able support of amici, broadly attacks the streamlining regulations on two grounds; (1) as inconsistent with the INA; and (2) as violative of his due process rights.

A. Background

The Supreme Court has “ ‘long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.’ ” Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977) (quoting Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210, 73 S.Ct. 625, 97 L.Ed. 956 (1953)). With limited exceptions, Congress, in the INA, charges the Attorney General “with the administration and enforcement of [the INA] and other laws relating to the immigration and naturalization of aliens.” 8 U.S.C. § 1103(a)(1) (2002). Pursuant to this power, Congress has mandated that the Attorney General “shall establish such regulations; ... issue such instructions; and perform such other acts as he deems necessary for carrying out his authority under [the INA].” 8 U.S.C. § 1103(a)(3) (2002). Congress has further authorized that “[t]he Attorney General may provide by regulation for any other conditions or limitations on the consideration of an application for asylum not inconsistent with this Act.” 8 U.S.C. § 1158(d)(5)(B) (2002).

The Attorney General has delegated to the BIA many of his responsibilities under the immigration laws, see 1 Charles Gordon, Stanley Mailman, & Stephen Yale-Loehr, Immigration Law and Procedure § 3.02[1] (rev. ed. 2003) (stating that the BIA “exercises so much of the Attorney General’s authority under the immigration and nationality laws as the Attorney General may delegate to it”), and has further delegated supervision of the BIA to the Department of Justice’s Executive Office of Immigration Review. Id. The BIA, established by regulation, has existed in various guises and has held various responsibilities since 1922. Id. at § 3.05[1]. Initially, immigration laws were enforced by the Secretary of Labor, under whose supervision the administrative immigration appellate body was known as the “Board of Review.” Id. After Congress transferred the responsibility for immigration enforcement to the Attorney General in 1940, the Board of Review was renamed the Board of Immigration Appeals. In its present form, the BIA has been described as “a quasi-judicial body with exclusively appellate functions.” Id.

The Attorney General promulgated the streamlining regulations in 1999 when the Board was faced with a crushing caseload, the number of cases having increased exponentially in a little over a decade. See Executive Office of Immigration Review: Board of Immigration Appeals Streamlining, 64 Fed. Reg. 56,135, 56,136 (Oct. 18, 1999) (to be codified at 8 C.F.R. pt. 3). See generally Board of Immigration Appeals: Procedural Reforms to Improve Case Management, 67 Fed. Reg. 54,878, 54,878-79 (Aug. 26, 2002) (to be codified at 8 C.F.R. pt. 3). Under the regulations, “the Chairman [of the BIA] may' designate certain categories of cases as suitable for review” by designated Board members “who are authorized to affirm decisions of Immigration Judges ... without opinion.” 8 C.F.R. § 3.1(a)(7)© (2002). The single BIA member to whom the case is assigned may affirm an IJ’s decision in a single sentence without an opinion if he or she determines that the result was correct, and that “(A) the issue on appeal is squarely controlled by existing Board or federal court precedent and does not involve, the application of precedent to a novel fact situation; or (B) the factual and legal questions raised on appeal are so insubstantial that three-Member review is not warranted.” 8 C.F.R. § 3.1(a)(7)(h) (2002).² Each AWO is exactly the same. It reads: “The Board affirms, without opinion, the results of the decision below. The decision is, therefore, the final agency determination.” See 8 C.F.R. § 3.1(a)(7)(iii) (2002); see also Executive Office of Immigration Review: Board of Immigration Appeals Streamlining, 64 Fed. Reg. at 56,137-38 (“The decision rendered below will be the final agency decision for judicial review purposes.... [T]he Immigration Judge’s decision becomes the decision reviewed.”). Such an order does not necessarily imply approval of all of the reasoning of the IJ’s decision, but does signify that the reviewing Board member considered that any errors by the IJ were harmless or immaterial. Id. If the single BIA member decides that the decision is inappropriate for affirmance without an opinion, the case is assigned to a three-member panel for review and decision. 8 C.F.R. § 3.1(a)(7)(iv) (2002). That panel, however, is also authorized to determine that a case should be affirmed without an opinion. Id.

B. Statutory and Regulatory Scheme

We are “confronted [with] questions implicating an agency’s construction of the statute which it administers.” INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (citation and internal quotation marks omitted). For this reason, we apply the principles of deference described in Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See Aguirre-Aguirre, 526 U.S. at 424, 119 S.Ct. 1439 (“It is clear that principles of Chevron deference are applicable to this statutory scheme.”). We initially ask whether “the statute is silent or ambiguous with respect to the specific issue” we confront. Chevron, 467 U.S. at 843, 104 S.Ct. 2778. If it is, “the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. 2778; see also Aguirre-Aguirre, 526 U.S. at 424, 119 S.Ct. 1439. In doing so, we bear in mind that “judicial deference to the Executive Branch is especially appropriate in the immigration context where officials ‘exercise especially sensitive political functions that implicate questions of foreign relations.’ ” Aguirre-Aguirre, 526 U.S. at 425, 119 S.Ct. 1439 (quoting INS v. Abudu, 485 U.S. 94, 110, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988)); see also Abdulrahman v. Ashcroft, 330 F.3d 587, 597 (3d Cir.2003) (quoting this section of Aguirre-Aguirre); Abdulai v. Ashcroft, 239 F.3d 542, 551 (3d Cir.2001) (acknowledging “the narrow scope of our review” under such circumstances).

The streamlining regulations easily pass the first step of the Chevron inquiry. The INA “is silent ... with respect to” streamlined administrative appeals. Chevron, 467 U.S. at 843, 104 S.Ct. 2778. The next question is whether the streamlining of administrative appeals “is based on a permissible construction of the statute.” Id. If, as Dia contends, the streamlining regulations are inconsistent with the INA, they certainly are not based on a permissible construction of the statute. So, we must look at what the INA says regarding the BIA in particular, and administrative appeals in general.³ In so doing, we can discern nothing in the INA with which the streamlining regulations are inconsistent. See Abdulai, 239 F.3d at 555 (“[N]othing in the INA specifically requires the Board to explain its decisions.”). In fact, the INA says nothing whatsoever regarding the procedures of an administrative appeal, or, for that matter, any other procedures employed by the BIA.

As Dia points out, the INA refers to the BIA in its “definitions” section, in connection with its definition of the term “order of deportation.”⁴ 8 U.S.C. § 1101(a)(47)(A) (2002). The relevant provision reads, in pertinent part:

The [“order of deportation”] shall become final upon the earlier of (i) a determination by the Board of Immigration Appeals affirming such order; or (ii) the expiration of the period in which the alien is permitted to seek review of such order by the Board of Immigration Appeals.

8 U.S.C. § 1101(a)(47)(B) (2002). Under this provision, an order of deportation is not “final” until either the BIA has passed on it, or the time for seeking BIA review has expired. The statute also provides that the statutory right to judicial review of orders of deportation is only available for a “final order.” 8 U.S.C. § 1252(b)(9) (2002); Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir.2002). Based on these two provisions, Dia argues that the BIA at the relevant time was an entity provided for by statute, and no longer existed solely by regulation.

But even assuming that the BIA could not be eliminated without statutory authorization, we are hard pressed to conclude much more from the definitional statement at § 1101(a)(47)(B). It says absolutely nothing about procedures to be employed by the BIA, or the right to, or manner of, review generally; it only speaks to review by the BIA and its “affirming” the “order” of deportation. 8 U.S.C. § 1101(a)(47)(B). Based on the fact that § 1101(a)(47)(B) contains the only mention of the BIA in the INA, it seems clear that Congress has left all procedural aspects of the BIA, especially how it hears cases, entirely to the Attorney General’s discretion. Id.

The statute’s references to an “administrative appeal” do not alter this conclusion. Only two statutory provisions of the INA reference the term “administrative appeal.” These provisions mandate that the procedure established for applying for asylum

shall provide that—

(iii) in the absence of exceptional circumstances, final administrative adjudication of the asylum application, not including administrative appeal, shall be completed within 180 days after the date an application is filed;

(iv) any administrative appeal shall be filed within 30 days of a decision granting or denying asylum, or within 30 days of the completion of removal proceedings before an immigration judge under section 1229a of this title, whichever is later.

8 U.S.C. § 1158(d)(5)(A)(iii) & (iv) (2002) (emphasis added). Although these provisions contemplate some type of an administrative appeal in connection with applications for asylum, they fail to provide any guidance as to the procedural trappings of that appeal.

Similarly unpersuasive is Dia’s citation to 8 U.S.C. § 1229a(c)(4), which provides:

If the immigration judge decides that the alien is removable and orders the alien to be removed, the judge shall inform the alien of the right to appeal that decision and of the consequences for failure to depart under the order of removal, including civil and criminal penalties.

Id. (emphasis added). Even if we were to assume that this provision contemplates that an alien will have the opportunity for an administrative appeal, neither this provision nor any other provision of the INA references the procedural requirements of an administrative appeal or outlines a scheme inconsistent with the streamlining regulations. Instead, it only speaks generally of an “administrative appeal” and “the right to appeal,” and of the BIA only in the context of a “final” order. To conclude from this language in the INA that the streamlining regulations are not a “permissible construction of the statute” under Chevron, 467 U.S. at 843, 104 S.Ct. 2778, would require a sizable leap that we cannot make. The Supreme Court has forcefully emphasized that “[ajbsent constitutional constraints or extremely compelling circumstances the administrative agencies should be free to fashion their own rules of procedure and to pursue methods of inquiry capable of permitting them to discharge their multitudinous duties.” Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 543, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978) (citation and internal quotation marks omitted). This “basic tenet of administrative law,” id., has even more force in the immigration context where our deference is especially great. See Abdulai, 239 F.3d at 552 (“In light of the INA’s enormously broad delegation to the Attorney General, we would be extremely reluctant to hold that his interpretation is unreasonable.”); see also 1 Gordon, Mailman, & Yale-Loehr, Immigration Law and Procedure § 3.02[2] (“[T]he theory of the [INA] is that all responsibility to enforce or administer the immigration laws is vested in the Attorney General, and that she may delegate or assign any of such powers in any manner she deems appropriate.”). We therefore hold that, in promulgating the streamlining regulations, the Attorney General did not run afoul of the INA.⁵

C. Constitutional Challenges

Dia next attacks the streamlining regulations as a deprivation of his constitutional right to due process under the Fifth Amendment.⁶ See U.S. Const, amend. V. We have plenary review over constitutional challenges to immigration procedures. Abdulrahman, 330 F.3d at 597. We agree with our sister courts of appeals that have passed on this issue and conclude that the streamlining regulations do not violate the Due Process Clause of the Constitution. See Denko v. INS, 2003 WL 22879815, at *8 (6th Cir. Dec.8, 2003); Falcon Carriche v. Ashcroft, 350 F.3d 845, 850 (9th Cir.2003); Georgis v. Ashcroft, 328 F.3d 962, 967 (7th Cir.2003); Mendoza v. United States Att’y Gen., 327 F.3d 1283, 1288 (11th Cir.2003); Soadjede v. Ashcroft, 324 F.3d 830 (5th Cir.2003); Albathani, 318 F.3d at 377.

The basic elements of due process in this context are clear. Although “the Fifth Amendment entitles aliens to due process of law in deportation proceedings,” Reno v. Flores, 507 U.S. 292, 306, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993), due process is “flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); see also Marincas v. Lewis, 92 F.3d 195, 203 (3d Cir.1996) (“Precisely what minimum procedures are due under a statutory right depends on the circumstances of the particular situation.”). The due process afforded aliens stems from those statutory rights granted by Congress and the principle that “[m]inimum due process rights attach to statutory rights.” Marincas, 92 F.3d at 203; see also Meachum v. Fano, 427 U.S. 215, 226, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). Our concern, then, is whether the streamlining regulations afford aliens such as Dia their minimum due process rights. See Alba-thani, 318 F.3d at 375 (stating that an unadmitted alien present in the United States has only “limited” due process rights); see also Anwar v. INS, 116 F.3d 140, 144 (5th Cir.1997) (“Due process challenges to deportation proceedings require an initial showing of substantial prejudice.”). In making this assessment, we look to see if the process at issue fits with the notion that “[t]he fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (citation and internal quotation marks omitted) (emphasis added).

Dia bases his primary due process argument on statements we made in Abdulai, where we expounded on this “ ‘fundamental requirement of due process’ ” articulated in Mathews. Abdulai, 239 F.3d at 549 (quoting Mathews, 424 U.S. at 333, 96 S.Ct. 893). In Abdulai, the BIA had issued a two-page per curiam opinion that contained a “terse” application of Board precedent to the specific facts of Abdulai’s case. Id. at 547. Abdulai argued, inter alia, that in so doing, “the BIA denied him due process by failing to make an individualized determination of his interests.” Id. at 549.

We began our analysis of Abdulai’s due process argument by noting that, in the context of the adjudication of claims for relief from removal such as the one before us, due process “requires three things.” Id. at 555. “An alien: (1) is entitled to ‘factfinding based on a record produced before the decisionmaker and disclosed to’ him or her; (2) must be allowed to make arguments on his or her own behalf; and (3) has the right to ‘an individualized determination of his [or her] interests.’ ” Id. (quoting Llana-Castellon v. INS, 16 F.3d 1093, 1096 (10th Cir.1994) (citation omitted)). Of these three requirements, Abdu-lai dealt solely with the third requirement, an “individualized determination.” In turn, Dia contends that, by issuing an AWO pursuant to the streamlining regulations, the BIA deprived him of his due process right to an “individualized determination” of his interest as that right was recognized in Abdulai.

Although we ultimately concluded in Ab-dulai that there was no due process violation because we found that the BIA had in fact made an “individualized determination” of Abdulai’s application, id. at 550, Dia seizes on what we said as we reasoned toward that conclusion. One such comment was that we had previously “suggested that the BIA denies due process to an alien when it ‘act[s] as a mere rubber-stamp.’ ” Id. (quoting Marineas, 92 F.3d at 202 n. 7). We also noted that “the question for due process ... is simply whether the Board made an individualized determination of Abdulai’s interests.” Id. (emphasis added). Dia argues that these observations require that we invalidate the streamlining regulations.

Dia, however, takes our statements in Abdulai out of context. We made those statements in connection with Abdulai’s argument that the BIA had not “acknowledged] or address[ed] any of his arguments.” Id. at 549. In Abdulai we necessarily reviewed the BIA’s opinion, because the BIA had issued an opinion and the petitioner focused his arguments on that opinion. Id. at 548. We therefore made the statements in Abdulai in the context of a situation in which the BIA had chosen to speak — thus forcing the reviewing court to examine the BIA’s reasoning — but had done so in a way that caused us to question whether the BIA had carefully reviewed the specific matter before it. See Mikhael v. INS, 115 F.3d 299, 302 (5th Cir.1997) (“We have authority to review only an order of the BIA, not the IJ, unless the IJ’s decision has some impact on the BIA’s decision.”). The situation here is very different; the BIA did not opine on its own, but, instead, referred us to the IJ’s decision.

Contrary to Dia’s suggestion, in Abdulai we did not impose a requirement that in all instances the BIA must indicate that it made an individualized determination of the claim for relief. In fact, we noted our approval of decisions of other courts of appeals that have upheld the BIA’s right to “ ‘simply state that it affirms the IJ’s decision for the reasons set forth in that decision.’ ” Abdulai, 239 F.3d at 549 n. 2 (quoting Chen v. INS, 87 F.3d 5, 7 (1st Cir.1996)). We also made clear that “[tjhere are some situations in which a court of appeals effectively reviews an IJ’s decision, but [that Abdulai’s was] not one of them.” Id. One of those situations arises, we noted, when the BIA “defers” to the IJ. Id. In that situation, “a reviewing court must, as a matter of logic, review the IJ’s decision to assess whether the BIA’s decision to defer was appropriate.” Id.; see also Abdulrahman, 330 F.3d at 591. And so, here, where the BIA directs us to the opinion and decision of the IJ who originally assessed Dia’s application, we review the IJ’s opinion.

Dia, nonetheless, also insists that the streamlining regulations violate his right to an “individualized determination” because they specifically state that an AWO does not necessarily imply approval of all of the reasoning of the IJ’s decision. See 8 C.F.R. § 3.1(a)(7)(iii) (2002). But he fails to articulate why or how this is so. We are unaware of any requirement, let alone any constitutional requirement, that an agency adjudicator must commit to writing or otherwise verbalize his or her reasoning, where, as here, the agency has directed us to an opinion for review. In Dia’s case, the due process right to an “individualized determination” was accorded to Dia at the IJ level, where the IJ “reasoned” her decision, and the BIA gave the result its imprimatur pursuant to its regulations. Certainly, the BIA could have articulated its reasons for affirming the IJ’s order, but just because it had the power to do so, does not mean the Constitution required it to exercise that power.⁷ See Abdulai, 239 F.3d at 549 n. 3 (“Having the power to do something and being required to do it are not the same thing.”).

Equally unavailing is amici’s argument that “fundamental rule[s] of administrative law” enunciated by the Supreme Court in SEC v. Chenery Corp., 332 U.S. 194, 196-97, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947), support Dia’s argument that the BIA’s failure to adopt the reasoning of the IJ, in accordance with the streamlining regulations, violated his constitutional right to due process. In fact, we believe that Chenery actually supports the opposite conclusion. In Chenery, the Court emphasized a “simple but fundamental rule of administrative law ... that a reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency.” Id. at 196, 67 S.Ct. 1575 (emphasis added). The “corollary” of this rule is that the basis of an administrative action “must be set forth with such clarity as to be understandable.” Id. The Court therein was concerned with ensuring that a reviewing court may “test” administrative action. Id. Under the streamlining regulations, this requirement is met. The BIA clearly “invokes” the IJ’s opinion as the grounds on which the agency’s decision rests; we thus “judge the propriety” of the IJ’s action in order to “test” the agency’s action. As the Court of Appeals for the First Circuit said:

[Petitioner and Amici] both overlook the plain language of Chenery, which refers to agencies in their entirety, not individual components of agencies. Here, the relevant agency — the INS — has presented a statement of reasons for its decision, albeit from the IJ rather than the BIA. Chenery does not require that this statement come from the BIA rather than the IJ.

Albathani, 318 F.3d at 377; see also Nagi El Moraghy v. Ashcroft, 331 F.3d 195, 206 (1st Cir.2003) (“The provision of reasons in the IJ’s opinion satisfies the requirement in SEC v. Chenery Corp., 332 U.S. 194, 196-97, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947), that administrative agencies set forth with clarity the basis for their decisions, and the AWO procedure did not prevent there being meaningful review.” (citation omitted)); Dominguez v. Ashcroft, 336 F.3d 678, 680 (8th Cir.2003) (stating that “the opinion of the immigration judge is sufficient to satisfy th[e] requirement” in Chenery Corp. that “an agency must set out the basis of its decision”).

Dia asserts three other ways in which the AWO violated his due process right: it denied him “meaningful review”; it prevented our court from providing meaningful review; and it was not “fair.” Although Dia does not match these due process arguments with any of the three-requirements for due process we outlined in Abdulai, they appear to be variations on his theme that the issuance of an AWO denied him of his right to an “individualized determination.” Regardless of their label, we reject these contentions as well.

Dia’s claim that the AWO denied him his so-called “due process right to meaningful review” lacks substance. Dia specifically maintains that he has the right to meaningful review by the BIA. Other than pointing generally to the Due Process Clause, however, Dia does not identify the source of this alleged right. We are unaware of any authority supporting a due process right to “meaningful review” by an administrative appellate body.

The “right to meaningful review” that Dia alleges is clearly distinguished from “[t]he fundamental requirement of due process [that] is the opportunity to be heard at a meaningful time and in a meaningful manner,” Mathews, 424 U.S. at 333, 96 S.Ct. 893, that we discussed above. The “meaningfulness” requirement of Mathews pertains to “the opportunity to be heard” and the “manner” in which one is heard, not to a review by an administrative appellate body. Id. Moreover, any recognized right to “meaningful review,” as we note more fully in the margin, has been confined to the context of review by federal courts, and not extended to review by an administrative appellate body.⁸ See also, e.g., Awolesi v. Ashcroft, 341 F.3d 227, 232 (3d Cir.2003) (“In order for us to be able to give meaningful review to the BIA’s decision, we must have some insight into its reasoning.”); Kayembe v. Ashcroft, 334 F.3d 231, 238 (3d Cir.2003) (“When deficiencies in the BIA’s decision make it impossible for us to meaningfully review its decision, we must vacate that decision and remand so that the BIA can further explain its reasoning.”). Quite clearly, “[a]n alien has no constitutional right to any administrative appeal at all,” Albathani, 318 F.3d at 376; see also Guentchev v. INS, 77 F.3d 1036, 1037 (7th Cir.1996), and, therefore, no constitutional right to a “meaningful” administrative appeal.

Nor are we persuaded by Dia’s related argument that the streamlining regulations — or, their “opaque” nature, as amici describe them — prevent us as a court of appeals from engaging in a meaningful review of the agency’s actions. See Simmons v. Beyer, 44 F.3d 1160, 1169 (3d Cir.1995) (stating that due process requires that a guaranteed “appellate procedure must furnish the components necessary for meaningful review”). We cannot agree with amici’s claim that “the summary affirmance process impermissibly strips the federal courts of the ability to properly review critical agency action.” The streamlining regulations in no way restrict our ability to review the agency’s denial of relief from removal. An agency, not a particular administrative appellate body, must set forth the basis for its order with sufficient specificity to permit meaningful review by this court. See Albatha-ni, 318 F.3d at 377. Here, as we discuss in the next section, we have no doubt as to the basis for the agency’s decision as put forth for review by the BIA. The BIA presents for our review the reasoning and decision of the IJ as that of the Attorney General. See Executive Office of Immigration Review: Board of Immigration Appeals Streamlining, 64 Fed. Reg. at 56,-137-38.

All that is required for our meaningful review is that the agency — as represented by an opinion of the BIA or IJ— put forth a sufficiently reasoned opinion. See Mendoza, 327 F.3d at 1289 (“[T]he meaningful review of the INS’s removability determination is not precluded by the brevity of the BIA’s summary affirmance decision because an appellate court ‘will continue to have the IJ’s decision and the record upon which it is based available for review.’ ” (quoting Albathani, 318 F.3d at 377)). While in many instances knowing the BIA’s reasoning might prove helpful to our review, the BIA’s failure to express it does not amount to a constitutional violation. Neither the Constitution nor Congress guarantee a de novo review by the BIA, Abdulai, 239 F.3d at 549 n. 3, nor do they guarantee a right to a fully reasoned opinion by the BIA. And, as we have noted, we see no constitutional significance in the fact that an AWO does not necessarily imply approval of all of the reasoning of the IJ. We are able to meaningfully review the final determination of the agency, and, in this context, that is all that due process requires.

We are similarly unmoved by Dia’s argument that the streamlining regulations violate basic due process requirements of “fairness.” See Bridges v. Wixon, 326 U.S. 135, 154, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945) (“Meticulous care must be exercised lest the procedure by which he is deprived of that liberty not meet the essential standards of fairness.”). We have made clear that “[w]hen Congress directs an agency to establish a procedure, ... it can be assumed that Congress intends that procedure to be a fair one.” Marineas, 92 F.3d at 203. What is “fair” within the context of immigration proceedings, however, need not always measure up to the requirements of fairness in other contexts, especially because “[a]liens only have those statutory rights granted by Congress.” Id.; see also Mathews v. Diaz, 426 U.S. 67, 79-80, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976) (“In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens.”).

We find nothing “unfair” in a constitutional sense about the INS’s streamlining procedures. An applicant retains a full and fair opportunity to make his case to the IJ, and has a right to review of that decision by the BIA, and then by a court of appeals. See Guentchev, 77 F.3d at 1038 (“The combination of a reasoned decision by an administrative law judge plus review in a United States Court of Appeals satisfies constitutional requirements.”); cf. Zubeda, 333 F.3d at 480 (“Justice requires that an applicant for asylum or withholding of deportation be afforded a meaningful opportunity to establish his or her claim.”); Abdulrahman, 330 F.3d at 596 (stating that an alien threatened with deportation has a right to a “full and fair hearing”). The fact that the review is done by one member of the BIA and that the decision is not accompanied by a fully reasoned BIA decision may be less desirable from the petitioner’s point of view, but it does not make the process constitutionally “unfair.” Neither Dia nor amici has provided any reason for us to conclude otherwise.

Our dissenting colleagues who disagree on this point would strike down the regulations, contending that they alter an established administrative scheme under the INA. However, upon further scrutiny, it becomes clear that Judge Stapleton is not really taking issue with the regulations as a perversion of the statute or even agency practice, but rather as a violation of principles of judicial review that we have espoused in our case law.⁹ Admittedly, the regulations will cause us to review cases affirmed by the Board without opinion. But, they do not force us to venture “through the looking glass” (like Alice in Wonderland), because we have the IJ’s reasoning and the record necessary to exercise our function of review. We have always required that the review process be a meaningful one, aided by a reasoned opinion from the agency.¹⁰ We do not today cast that principle aside. Rather, we hold that when the issue before us is the validity of an agency’s regulations establishing its procedures, unless they violate Congressional dictates or give rise to a due process violation, the regulations must stand, especially where, as here, Congress has specifically delegated the power to establish procedures by regulation.¹¹

Furthermore, Judge Stapleton’s dissent focuses on a perceived “inability to review” in the abstract, doing a disservice to, and seemingly ignoring, what we have done and will continue to do in reviewing, in a meaningful manner, the cases that come to us from the BIA. When, after scouring the record, we are still unable to determine the agency’s reasoning, we have remanded to the BIA for further explanation.¹² In actuality, these regulations do not prevent us from adhering to the very principles that Judge Stapleton’s dissent contends are being abandoned. Today we face no such “inability to review” in this case, as we can clearly review, and are reviewing, what the agency did without the aid of the BIA’s particular take on the matter.¹³ Thus, there is no basis for a blanket declaration of invalidity, or a declaration that the regulations are invalid as applied here.

Accordingly, we hold that the Attorney General’s implementation of the streamlining regulations and the BIA’s issuance of an AWO in this case did not violate either the INA or the Constitution.

II. THE AGENCY’S DENIAL OF RELIEF

We now turn to Dia’s substantive attack on the Attorney General’s denial of his claim for relief from removal. As outlined above, when the BIA issues an AWO under the streamlining regulations, we review the IJ’s opinion and scrutinize its reasoning. Because Dia’s credibility was the basis on which the IJ rested her decision to deny relief, the sole issue before us is that credibility determination. In addressing this issue, we first will detail Dia’s testimony before the IJ, augmenting it with details from the administrative record. We then will discuss our standard of review. Lastly, we will apply that standard of review to the IJ’s opinion, explaining why we must vacate it.

A. Dia’s Testimony

Dia, an ethnic Fula, was born in Selou-ma, Dinguiraye, Guinea. He has had only two years of education, has a limited ability to read and write, and does not speak English. He joined the Rassemblement du Peuple de Guiñeé (“Rally of the People of Guinea Party” or “RPG”) in 1998, at the age of twenty-two. His father had been a member of the RPG before his death in 1997. Dia worked in the field rallying support for RPG’s imprisoned leader, A-pha Conde — a member of parliament and a candidate in the 1998 presidential election —and monitored voting polls to help prevent election fraud. The Country Report for Guinea assembled by the U.S. Department of State — included in the administrative record — reveals a country in a state of turmoil. Guinea’s political system appears “deeply flawed” and its human rights record even worse. See U.S. Department of State, 2000 Country Reports on Human Rights Practices: Guinea (Feb. 2001) (hereinafter “Country Report”). The Country Report states:

The Government’s human rights record was poor; although there were some improvements in a few areas serious problems remained in others. The Government’s tight and sometimes partisan control of the electoral process both in the 1998 presidential election and ■ the deeply flawed June municipal elections; its refusal to create an independent electoral oversight mechanism; and its prohibition of nongovernmental broadcast media, effectively restricted citizens’ right to change their government. Major human rights abuses include: Extrajudicial killings; disappearances; use of torture, beatings and rape by police and military personnel; and police abuse of prisoners and detainees. Soldiers, police, and civilian militia groups killed, beat, and raped citizens, as well as refugees from Sierra Leone and Liberia. Security forces used arbitrary arrest and detention. Members of the security forces committed abuses with impunity.... Violence and societal discrimination against women, prostitution of young girls, female genital mutilation (FGM), ethnic discrimination and inter-ethnic violence, child labor, reports of trafficking of women and children, and vigilante actions by victims or others persisted.

Id. This report is important because the picture it paints provides a background against which to assess Dia’s credibility. See Nagi El Moraghy, 331 F.3d at 204 (stating that State Department reports “provide a context for assessing the credibility of a petitioner’s case .... depending on whether or not they corroborate the petitioner’s tale”); see also Zubeda, 333 F.3d at 477 (“Official as well as unofficial country reports are probative evidence and can, by themselves, provide sufficient proof to sustain an alien’s burden under the INA.”).

Dia testified that the problems that directly affected him began on November 22, 2000. At that time, he was approached in his home in Nzerekore, Guinea, by a man named Bangora, who was the chief of his neighborhood, and two other men, who asked him to join the Guinean military to fight Liberian and Sierra Leonean rebels fighting in Guinea. When Dia refused to join the military, Bangora and the other men accused Dia of sympathizing with the rebels. Dia testified that he refused to join the military because members of the military had killed his father and he feared they wanted to kill him as well.¹⁴ He also testified that the three men associated the RPG with the rebels, knew that Dia belonged to the RPG, and “wanted to create some problems for [him] so that they could accuse [him] of something.” He told the IJ that he believed that Bangora and the two men knew he would not join them because members of the RPG, such as Dia, oppose the government and, thus, refuse to give it aid.

Later that day, Dia, concerned for his welfare, went to his uncle’s home outside of town to seek advice. Apparently, his uncle was not at his home and Dia waited three days until his uncle finally returned. After the two consulted, Dia’s uncle agreed to return with Dia to town to talk to Bangora. When they arrived, Dia discovered his home burned to the ground.¹⁵ Eventually, he found his wife, who was bruised, and daughter at his in-laws’ home. In response to questions about her bruises, Dia’s wife told him that, on November 24, about twenty-five military men had come to their home searching for Dia, and, upon finding that Dia was not home and hearing Dia’s wife’s claim not to know where Dia was, the men beat and raped her and burned the house. The men told his wife that Dia was aiding the rebels so that Conde could be released. After consulting with his wife who pled with him to flee the country, Dia decided not to talk with Ban-gora and to flee from the village, leaving her and their child behind.

For four months, Dia remained in Guinea, living at the home of his friend, Abdou-laye Sow.¹⁶ Sow eventually made arrangements for Dia to secure a new Guinean passport and a U.S. visa with his “friend who was a person who ma[de] arrangements] for people who want to travel.” Dia gave the man his old passport and six photographs. Dia did not learn either the man’s name or how the man procured the documents. The man told Dia to tell U.S. immigration officials that he went to work in Italy as a “tomato picker” and was on his way to Honduras to work on a ship. The man gave Dia a new Guinean passport, a U.S. visa, “a letter packet” ostensibly supporting the story that he worked in Italy, and an airline ticket. Dia paid the man 2 million Guinean francs (about $1000 U.S.). Dia also secured the services of a Guinean policeman to help him pass through the police roadblocks. Dia paid that officer 300,000 Guinean francs (about $150 U.S.).

Upon his arrival in the U.S., Dia attempted to enter the country using the story that the smuggler recommended. The INS official, noticing that Dia did not have a ticket to go to Honduras, did not believe his story. The INS then sought to remove Dia. Dia conceded removability, but sought relief from deportation based on asylum, withholding of removal, and relief under the CAT. Dia was twenty-six years old at the time of his hearing before the IJ. Represented by counsel, and speaking in Fulani through an interpreter, he testified at the hearing and called a handwriting expert to support his story that the visa and passport did not contain his handwriting. The IJ issued a written opinion, denying relief because she found that Dia was not credible. As mentioned, the BIA, through a single member of the Board, affirmed without opinion pursuant to 8 C.F.R. § 3.1(a)(7) (2002).

B. Burden and Standard of Review

An alien has the burden of supporting his claim for relief from removal. An alien’s credibility, by itself, may satisfy his burden, or doom his claim. Gao, 299 F.3d at 272 (“Aliens have the burden of supporting their asylum claims through credible testimony. Testimony, by itself, is sufficient to meet this burden, if ‘credible.’ ” (quoting 8 C.F.R. § 208.13(a)) (citation omitted)); see also Mulanga v. Ashcroft, 349 F.3d 123, 132-34 (3d Cir.2003) (stating that an applicant’s credible testimony “may be sufficient to sustain the burden of proof without corroboration”). The IJ here concluded that Dia was not credible based on “the inconsistencies in Dia’s testimony and its overall implausibility.” This adverse credibility determination — fatal to Dia’s claim — was a finding of fact. See Gao, 299 F.3d at 272; see also Mulanga, 349 F.3d at 131-32; Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) (“Generally, courts have treated credibility questions in deportation proceedings as questions of fact....”).

We review the agency’s findings of fact under the standard found in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, div. C, 110 Stat. 3009 (enacted April 1, 1997) (IIRIRA or “Reform and Responsibility Act”), which provides:

[T]he administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.

8 U.S.C. § 1252(b)(4)(B).

Since the enactment of the Reform and Responsibility Act, various courts of appeals, including our court, have read this standard to require that the agency support its findings with substantial evidence, as articulated by the Supreme Court in INS v. Elias-Zacarias, 502 U.S. 478, 481-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).¹⁷ There, the Court framed the standard as follows:

The BIA’s determination that Elias-Za-carias was not eligible for asylum must be upheld if “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” 8 U.S.C. § 1105a(a)(4). It can be reversed only if the evidence presented by Elias-Zacarias was such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed. NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 83 L.Ed. 660 (1939).

Id. at 481, 112 S.Ct. 812. And, in the case relied upon by the Court in Elias-Zacari-as for that principle, the Court stated:

Substantial evidence is more than a scintilla, and must do more than create a suspicion of the existence of the fact to be established. “It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,” ... and it must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.

Columbian Enameling & Stamping Co., 306 U.S. at 300, 59 S.Ct. 501 (citation omitted).

Our court has explicitly stated that “[t]he Reform and Responsibility Act codifies the language the Supreme Court used in Elias-Zacarias to describe the substantial evidence standard in immigration cases.”¹⁸ Sevoian v. Ashcroft, 290 F.3d 166, 171 (3d Cir.2002). The substantial evidence standard has historically been, and continues to be, the standard governing the relationship between administrative agencies and courts of review.¹⁹

The application of the substantial evidence standard is well-established. See, e.g., Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 366-67, 118 S.Ct. 818, 139 L.Ed.2d 797 (1998) (indicating that the substantial evidence test requires court to decide “whether on this record it would have been possible for a reasonable jury to reach the Board’s conclusion”); FTC v. Indiana Fed’n of Dentists, 476 U.S. 447, 455, 106 S.Ct. 2009, 90 L.Ed.2d 445 (1986) (noting that the substantial evidence test requires court to “accept Commission’s findings of fact if they are supported by ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion’ ”). Thus, the question whether an agency determination is supported by substantial evidence is the same as the question whether a reasonable fact finder could make such a determination based upon the administrative record. If a reasonable fact finder could make a particular finding on the administrative record, then the finding is supported by substantial evidence. Conversely, if no reasonable fact finder could make that finding on the administrative record, the finding is not supported by substantial evidence.

Thus, where we review an IJ’s credibility determination, we must ask whether the determination is supported by evidence that a reasonable mind would find adequate. We look at an adverse credibility determination to ensure that it was “appropriately based on inconsistent statements, contradictory evidences, and inherently improbable testimony ... in view of the background evidence on country conditions.” In re S-M-J- (Interim Decision), 21 I. & N. Dec. 722, 1997 WL 80984 (BIA 1997). Where an IJ bases an adverse credibility determination in part on “implausibility” as the IJ did here, such a conclusion will be properly grounded in the record only if it is made against the background of the general country conditions. See Gao, 299 F.3d at 278-79; see also He v. Ashcroft, 328 F.3d 593, 603 (9th Cir.2003).

Therefore, “[w]hile we defer to the IJ on credibility questions, that deference is expressly conditioned on support in the record,” Nagi El Moraghy, 331 F.3d at 205, and “[d]eference is not due where findings and conclusions are based on inferences or presumptions that are not reasonably grounded in the record.” Id. at 202 (citation and internal quotation marks omitted); see also Abdulrahman, 330 F.3d at 597 (stating that “substantial deference” to a finding is to be “afforded ... where it is grounded in evidence in the record”). To this end, it is clear that “[a]dverse credibility determinations based on speculation or conjecture, rather than on evidence in the record, are reversible,” Gao, 299 F.3d at 272, and that an IJ must support her adverse credibility findings with “specific[,] cogent reasons.” Id. at 276; Abdulrahman, 330 F.3d at 597; see also Secaida-Rosales, 331 F.3d at 307 (“When an IJ rejects an applicant’s testimony, the IJ must provide ‘specific, cogent’ reasons for doing so.”); He, 328 F.3d at 595 (“[T]he IJ and BIA must offer a ‘specific, cogent reason for any stated disbelief.’ ” (quoting Hartooni v. INS, 21 F.3d 336, 342 (9th Cir.1994))).

If the IJ’s conclusion is not based on a specific, cogent reason, but, instead, is based on speculation, conjecture, or an otherwise unsupported personal opinion, we will not uphold it because it will not have been supported by such relevant evidence as a reasonable mind would find adequate. In other words, it will not have been supported by substantial evidence. Guided by this examination of our principles of deference regarding an IJ’s credibility determination, we conclude that the IJ’s determination here fails this test.

C. The Immigration Judge’s Decision

The IJ rejected numerous aspects of Dia’s testimony, as well as the entire testimony of Dia’s expert handwriting witness. For purposes of our analysis, we will divide the testimony rejected by the IJ into three areas: past persecution, the circumstances surrounding Dia’s procurement of a passport and visa, and future persecution. Dia insists that the IJ’s findings of fact underpinning the adverse credibility determination as to each of these categories of testimony are not supported by evidence in the record, and are not otherwise sufficient to support the conclusions reached by the IJ.²⁰ We must, therefore, examine the IJ’s analysis and reasons put forth in order to determine whether she based the adverse credibility determination on substantial evidence. Doing so, we find that the IJ’s conclusions do not flow in a reasoned way from the evidence of record and are, at times, arbitrary and conjectural in nature. Repeatedly, we are left wondering how the IJ reached the conclusions she has drawn. Her opinion consists not of the normal drawing of intuitive inferences from a set of facts, but, rather, of a progression of flawed sound bites that gives the impression that she was looking for ways to find fault with Dia’s testimony.

Accordingly, we find that the IJ’s adverse credibility determination is not supported by substantial evidence in the administrative record, and we will remand for the IJ to either state, or seek, the necessary foundation to augment her opinion.

Before reviewing the specific aspects of the IJ’s ruling that we find troubling, however, it is appropriate that we note our agreement with the view expressed by Judge Alito that asylum cases are difficult ones — for us, as well as for immigration judges. And, as Judge Alito points out, some leeway must be given to the administrative arbiters to draw inferences based on common sense and logic as well as on personal experience and background knowledge gained from exposure to certain situations.

However, perhaps because of the difficult nature of these types of cases, and the critical importance of resolving them properly — for the stakes are very high indeed — the soundness of the basis of the decision making, even if experiential or logical in nature, must be apparent. The process of drawing inferences cannot be left to whim, but must withstand scrutiny.²¹

Here, we are presented with a unique setting in which, as we will catalog, the inferences drawn and conclusions reached are in some instances non sequiturs, and in others, counterintuitive. The flow of the reasoning process appears to break down as the IJ, repeatedly, draws an unreasonable conclusion from a fact susceptible to differing interpretations. Numerous such instances do not, as the dissent suggests, add up to a totality of circumstances that supports a finding that Dia’s testimony was not credible. Rather, they are an aggregation of empty rationales that devolve into an unsupported finding of adverse credibility. Moreover, rather than standing our standard “on its head,” as the dissent suggests, our appropriate insistence on “substantial evidence” upholds that standard by requiring that there be a sound basis — -whether supplied by the record evidence or by background knowledge — to support the IJ’s findings.²²

Here, the conclusions of the IJ are more puzzling than plausible, more curious than commonsense. Judge Alito suggests that if we refuse to defer to the IJ’s reasoning here, we would gut the substantial evidence standard. To the contrary, we suggest that to require sound reasoning breathes life into that standard.

We do not, as Judge Alito implies, conclude that the IJ was bound to find Dia credible. Rather, we recognize the possibility that the IJ’s conclusions might ultimately be the correct ones. However, we cannot affirm the IJ’s findings and conclusions on the record presented to us, as the reasons she does provide in support of her decision do not logically flow from the facts she considered. Accordingly, we conclude that the best course is to remand for further explanation by the IJ as to the basis for her various conclusions.

1. Past Persecution

We first address the various parts of Dia’s testimony regarding past persecution that the IJ rejected. We begin with a statement made by the IJ that foretells many of the errors that also infect other parts of her opinion: the IJ’s rejection of Dia’s testimony that, in her words, “members of the Guinean police are actively looking for him.” The IJ rejected this testimony as not credible for two reasons: “this conclusion ... is, in fact, contrary to the evidence in the Record of Proceedings”; and “this conclusion [was] not supported by any documentation in the Record of Proceedings.” On examination, these reasons for rejecting Dia’s testimony are patently inadequate.

The IJ’s conclusion that Dia’s testimony that “members of the Guinean police are actively looking for him ... [was] contrary to the evidence in the Record of Proceedings” is based on a misreading of Dia’s testimony. Dia did not testify that the police were after him, but, rather that the military was after him. Even assuming that the IJ concluded that the police in Guinea necessarily would be looking for a man wanted by the military, there is nothing in the record, nor any reasoning set forth by the IJ in her opinion, to support that conclusion. In fact, the Country Report depicts a country where the military, as well as the civilian militias, act independently from the formal government.

Even more troubling is the fact that, considering the testimony as the IJ presented it — i.e., that the police were after Dia — the IJ’s rejection of this testimony still is not explained, nor does it have any basis in the record. The IJ stated, rhetorically, that she “question[ed] how [Dia] was able to procure a police stamp if he was actively being sought by the police.” But Dia explained how. He testified that a policeman helped him bypass the police and that Sow’s friend had procured the police stamp. The IJ dismissed this testimony as “unconvincing,” but failed to say why or point to any evidence that contradicted this testimony. Absent a reason such as implausibility or inconsistency based in the record, or that Dia’s demean- or in some way led her to question his veracity, the IJ should not have summarily dismissed Dia’s testimony on this point.²³

We are perplexed by the IJ’s rejection of Dia’s explanation that a Guinean policeman helped him cross the police border for 300,000 Guinean francs (about $150). The IJ stated that she “question[ed] why this policeman would risk his reputation, not to mention, his life, to assist the respondent, a wanted political opponent, evade detection by the police ... for the equivalent of $150 United States Dollars.” This conclusion is not explained, and appears to be pure conjecture. It is not only not based on the record, but, in fact, it contravenes key parts of it. The Country Report confirms that Guinean police extort money from citizens at road blocks and that corruption at road checkpoints is widespread and “systematic.” In addition, figures contained in the record show that $150 U.S. is nearly a quarter of the per capita GDP in Guinea for 1999, a sum likely tempting to a policeman in a poor country replete with corruption within its police force.

As for the IJ’s reference to a lack of “supporting documentation” in the record that “members of the Guinean police are actively looking for” Dia, the IJ failed to explain what type of “documentation in the Record” she expected or required. We cannot imagine how Dia could have provided documentary support for the fact that the military (or the police as the IJ stated) was after him. At most, an applicant must provide corroborating evidence only when it would be reasonably expected. See In re S-M-J- (Interim Decision), 21 I. & N. Dec. 722, 1997 WL 80984 (BIA 1997). As we have cautioned:

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. It is equally obvious that one who flees torture at home will rarely have the foresight or means to do so in a manner that will enhance the chance of prevailing in a subsequent court battle in a foreign land. 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. Accordingly, corroboration is not required to establish credibility. The law allows one seeking refugee status to “prove his persecution claim with his own testimony if it is credible.”

Senathirajah v. INS, 157 F.3d 210, 215-16 (3d Cir.1998) (quoting Mosa v. Rogers, 89 F.3d 601, 604 (9th Cir.1996)). Dia was not in a position to corroborate his testimony in this regard. See Qiu v. Ashcroft, 329 F.3d 140, 153-54 (2d Cir.2003) (“Unless the BIA anchors its demands for corroboration to evidence which indicates what the petitioner can reasonably be expected to provide, there is a serious risk that unreasonable demands will inadvertently be made.... What is (subjectively) natural to demand may not ... be (objectively) reasonable.”).

In any event, the IJ failed to acknowledge, let alone adhere to, the parameters that we have adopted regarding such corroboration. In Abdulai, we recognized that, under certain circumstances, the BIA may require corroboration, and we found the three-part inquiry that the BIA has developed in this respect to be consistent with the INA. According to this inquiry, we require the following from an IJ: “(1) an identification of the facts for which ‘it is reasonable to expect corroboration;’ (2) an inquiry as to whether the applicant has provided information corroborating the relevant facts; and, if he or she has not, (3) an analysis of whether the applicant has adequately explained his or her failure to do so.” Abdulai, 239 F.3d at 554 (quoting In re S-M-J-, 21 I. & N. at 725). Here, the IJ failed to analyze whether Dia adequately explained his failure to present corroborating evidence.

In fact, it appears that the IJ actively discouraged — if she did not indeed prohibit — Dia from presenting such evidence. At one of the hearings, Dia’s counsel told the IJ that Dia had been “trying to contact friends or family to substantiate his case. And over the weekend, a friend of his faxed a letter to [counsel’s] office, which [counsel] had only obtained on Monday and [] had to get translated.” The IJ then marked it for “identification purposes only.” At the end of that hearing, the IJ made clear that she was skeptical of Dia’s claims and “need[ed] more information.” But, when Dia’s counsel stated that he understood and noted that he was “somewhat encouraged that over the weekend, [he was] able to make contact with this friend who sent the fax,” the IJ remarkably stated: “I’m not interested about the friend. These friends any more.... I’m not going to give any credence whatever any ‘friend’ has to say about it.” She further made clear that her only concern after the hearing was the authenticity of Dia’s passport and visa, and asked the Government to provide that information. Thus, the IJ expressed a desire for corroboration (ie., “supporting documentation”), then discouraged Dia from providing it, only to criticize and penalize Dia for not providing it. Such arbitrariness necessarily undermines the IJ’s reasoning.

In a recent case involving similar issues, we opined that an IJ’s adverse credibility determination does not pass muster under the substantial evidence rubric when it is not supported by an adequate explanation of the IJ’s reasoning. In Mulanga, 349 F.3d at 126-27, we encountered and criticized the very same type of analysis that we find problematic here. There, the IJ: 1) faulted the petitioner’s failure to provide corroboration in a situation in which that failure seemed quite reasonable; 2) found the petitioner’s account — which we found plausible in light of State Department reports — to lack “common sense,” without further explanation; and, 3) dissuaded the petitioner from producing evidence, the lack of which was later criticized. Id. at 135-38. There, too, we found a lack of substantial evidence to support the adverse credibility determination, and concluded that the order should be vacated and the matter remanded for further proceedings. Id. at 138.

An even more significant aspect of Dia’s testimony rejected by the IJ was his report that twenty-five members of the military went to his home to find him, and, upon realizing that Dia was not there, beat and raped his wife. One reason the IJ gave for discrediting this story was that Dia did not present any evidence that the men who did this were from the military, other than hearsay of his wife. We have two problems with this reasoning. The first is that the IJ again failed to engage in the three-pronged analysis we require when an IJ expects documentary evidence or corroboration, discussed above. The second is that, “[tjhough the hearsay nature of evidence certainly affects the weight it is accorded, it does not affect its admissibility in immigration [removal proceedings].” Kiareldeen v. Ashcroft, 273 F.3d 542, 549 (3d Cir.2001); cf. Ezeagwuna v. Ashcroft, 325 F.3d 396, 406 (3d Cir.2003) (referring to a letter as “multiple hearsay of the most troubling kind”). By matter-of-factly dismissing the evidence as “hearsay,” the IJ failed to explain why it should be accorded no weight. We submit that such seemingly reliable hearsay evidence should not be rejected in such a perfunctory manner.

The other reasons that the IJ proffered for rejecting this testimony are similarly based on unsustainable grounds, namely, pure conjecture. The IJ “questioned] why so many men would go to the respondent’s home searching for him,” and stated that “[i]t seems, to th[e] Court, [ ] an unusually large number for that purpose.” The IJ also noted that Dia gave no explanation why the men raped his wife and stated that “[i]t seems unlikely to th[e] Court that men who were looking for the respondent would attack his wife.” The basis for the IJ’s having “questioned” this testimony is not explained, and appears speculative at best. Why would the IJ expect Dia to know why such a large group of men were seeking him or why they raped his wife? Twenty-five was an “unusually large number” — compared to what, or based on what? Without some explanation we are hard-pressed to understand why the IJ would find it so difficult to believe that a group of about twenty-five men would have come to Dia’s home. Not only does this account seem consistent with common accounts of the practice of armed groups in war-torn countries, but the record contains documentary evidence confirming that police and civilian mili-tías — groups of roving bands in large numbers — rape and attack suspected rebel supporters, as well as civilians, often burning and looting in the process. On what basis did the IJ determine that these aspects of Dia’s account were “unlikely”? Again, we are left wondering.

We also conclude that the IJ unreasonably penalized Dia for presenting “no explanation as to why these men would beat and rape his wife.” Dia testified that his wife told him that they were military and that they were looking for him because he supported the rebels. He showed a temporal proximity between Bangora’s visit to his home and the raping of his wife. He also testified that B angora knew of his affiliation with the RPG. So, Dia did, in fact, present some testimony as to why the men came to his home. It seems reasonable for Dia to believe that the militia consisted of government soldiers or was sent by the government. Yet, the IJ rejected this account without explanation. It can hardly be said that Dia had an obligation to investigate further the specific identity of the men who he claims raped his wife and burned his home. How could he have known this? Would not any explanation he might offer be criticized by the IJ as a fabrication, since surely they would not have shared their motivation with him? There is no authority that would require Dia to present direct evidence of the men’s motives; rather, circumstantial evidence was sufficient. See Elias-Zacañas, 502 U.S. at 483, 112 S.Ct. 812; Navas v. INS, 217 F.3d 646, 659 n. 18 (9th Cir.2000) (“Where police beat and threaten the spouse of a known dissident, it is logical, in the absence of evidence pointing to another motive, to conclude that they did so because of the spouse’s presumed guilt by association.”). As a result, the IJ’s conclusion in this regard, too, was unsupported either in the record or by a commonsense explanation.

The IJ’s disbelief of Dia’s testimony that his wife urged him to flee the country without her also lacked foundation in any logical reasoning or any support in the record, and thus seems to demonstrate more speculation and arbitrariness on the part of the IJ. Dia testified that “[his] wife told [him] if he would really like to see her again, next time in the future, that the best thing was for [him] to try to just flee and try to find a place. And [he] decided to leave her with her family members.” The IJ stated that she found “it highly unlikely that a woman, who allegedly had just been beaten and raped, would urge her husband to leave her and not suggest that she accompany him out of the country.” Why? The IJ also stated that “it appears unlikely that a man whose wife has just been beaten and raped by military personnel would not suggest that they flee the country together.” Why? We can think of any number of reasons why Dia’s wife might have urged him to leave without her.²⁴ The IJ failed to share any basis for her conclusions and, without proper support, we cannot help but view them as not constituting substantial evidence.²⁵

2. Procurement of a Passport and Visa

The second general aspect of Dia’s story that the IJ rejected dealt with the circumstances surrounding his procurement of a passport and visa. The reasons put forth as support for the rejection, however, do not, again, satisfy the test for substantial evidence.

First, the IJ expressed incredulity that “a man” — ie., Sow’s Mend, the “smuggler” — procured a new passport and a U.S. visa for Dia. Essentially, she concluded that the man did not exist because she found it unbelievable that Dia did not know the identity of a man who helped him leave the country and to whom he “paid a large sum of money.” In fact, during the hearing she went so far as to dismiss Sow’s friend out of hand as an “imaginary person.” But she did so without inquiry into this aspect of Dia’s story, and, in her written opinion, she failed to articulate why she considered it so unbelievable. What is more, as mentioned earlier, she inconsistently asked for more information about how Dia got the passport and visa, but stated that Dia could not provide any supporting evidence from any more “friends.” As it is presented in her opinion, then, the dismissal of this aspect of Dia’s testimony constitutes conjecture as to how the IJ believed Dia should have acted. But it seems highly unreasonable for the IJ, without inquiry into the underlying reasons, to assume that Dia would have, without fail, learned Sow’s friend’s name, given that Sow was his friend and that it was Sow, not Dia, who dealt with the smuggler.²⁶ Why would someone in Dia’s position care about the smuggler’s name?

The IJ also inappropriately rejected Dia’s testimony that he had never been to Italy. Dia testified that he was told by Sow’s friend who procured his passport to say that he was a tomato picker in Italy on his way to Honduras, and that he told this story to the immigration officer at the airport. In rejecting Dia’s testimony that he had never been to Italy, the IJ listed a litany of reasons: the U.S. visa in Dia’s passport was issued in Italy; the visa and passport are “valid”; Dia’s non-immigrant visa contains a signature of “Saidou Dia”; an INS memo to file, derived from an airport interview, states that Dia was a “tomato picker” in Italy; the “tomato picker” lie does not make sense because the fact that he was a tomato picker in Italy was “not beneficial to him as far as his intention to remain in the U.S.”; Dia possessed employment documents from Hou-con Cargo Shipping Company addressed to “Dia’s” address in Italy; Dia’s alleged ignorance as to how these documents came to be (and explanation that the smuggler got them for him) was unbelievable; and because she “question[ed] how this [shipping] company would know of an address of the respondent in Italy unless the respondent provided an Italian address to them.”

The problems with these “reasons” are manifold. As Dia points out, the testimony and reports regarding the passport and visa bore out the fact that the passport and visa given him were “genuine” and seemingly issued in Italy, but not that they were necessarily legitimately obtained or even obtained by Dia. Dia explained consistently how he came into possession of the “genuine” documents and why he told the INS officials that he was a tomato picker on his way to Honduras. Dia also points out that, as discussed below, he presented an expert witness who gave unrebutted testimony that the handwriting on the documents was not Dia’s. As for the letter from the shipping company, a purported address for Dia certainly does not render it authentic. The existence of the address on the letter does not mean that the address exists or that the letter was ever mailed, or even that the cargo company existed. In fact, to conclude that because the documents listed an Italian address, therefore the shipping company actually knew of Dia’s address in Italy, strikes us as bizarre. Dia testified that he got the documents from the smuggler and, thus, that they were totally fraudulent. The record contains no evidence contradictory to this story, and the IJ does not explain why it was not plausible.

Basically, the IJ seemed confused by the fact that the documents that Sow’s friend procured for Dia could be so good that the documents appeared genuine and that the supporting documentation would support Dia’s Italy story. The only evidence in the record that the IJ used to support her conclusion was the INS memo regarding the airport interview, which states that “[h]is last employment appears to be as a Tomato picker while living illegally in Italy.” But, if we are to rely on this memo, assuming it was probative, we must do so with care.

First, we are generally skeptical of reliance on reports of airport interviews. In Balasubramanrim v. INS, we stated that the airport interview is usually not “valid grounds upon which to base a finding that an applicant is not credible.” 143 F.3d 157, 164 (3d Cir.1998) (citation and internal quotation marks omitted). We noted:

We do not know how the interview was conducted or how the document was prepared. We do not know whether the questions and answers were recorded verbatim, summarized, or paraphrased. We cannot tell from the document the extent to which [the petitioner] had difficulty comprehending the questions, whether questions had to be repeated, or when and how sign language was used. Nor does the document reveal whether [the petitioner’s] responses actually correspond to those recorded or whether the examiner recorded some distilled or summary version based on his best estimation of the response.

Id. at 162; see also Mulanga, 349 F.3d at 137-38 (refusing to rely too heavily on the content of an airport interview and noting that “immaterial discrepancies between airport interviews and subsequent testimony should not be used to make adverse credibility determinations”); Zubeda, 333 F.3d at 477 (stating that “[e]aution is required” when considering what weight to give even to an asylum affidavit); Senathi-rajah, 157 F.3d at 216 (warning against placing too much reliance on an airport interview). Here, too, there does not appear to be any such information. In fact, it appears that much of the memo memorializes information not taken under oath, including the “tomato picker” story, and that the IJ completely disregarded the INS official’s expressed lack of certainty, as evidenced by his use of “appears.” And, the INS official noted that the information not taken under oath came forth during a conversation in French, a language the official noted Dia was only “able to converse somewhat in,” and that Dia “asked for a Malinge interpreter for the sworn statement.” AR237. But even more important is the fact that, even if we take the information from the airport interview as accurate, it does not contradict Dia’s story, but is, in fact, consistent with it. Dia explained that the smuggler told him a story to present to the immigration officials in the U.S., which he clearly did. This does not prove that Dia had lived in Italy; rather, it bolsters his testimony that this was the story he was told to tell.

In addition, we cannot fathom why the IJ rejected the testimony of Dia’s expert witness, Gregory McNally. McNally testified that the signatures on the passport and visa were not Dia’s. He came to this conclusion after comparing six of Dia’s known signatures with that on Dia’s Republic of Guinea passport and with that on Dia’s Non-Immigrant Visa Application for the U.S. visa found in the passport. Presumably, the purpose of the testimony was to show that, even though the passport and visa issued in Italy were “authentic,” they were not in fact really Dia’s because they did not contain Dia’s actual signature. Establishing this fact certainly would buttress Dia’s testimony that he never went to Italy or obtained the visa and passport himself. This testimony totally undercuts the Id’s reasoning, and it is especially important in that it undermines both the IJ’s expressed skepticism that the passport and visa were not valid and her apparent conclusion that Dia must have been a tomato picker in Italy simply because the documents were “genuine.” Surely she should have realized that they were “genuine” but were not Dia’s. If her experience led her to reject that as improbable, she should have explained her thinking.

The IJ explained her rejection of McNally’s testimony that the signatures on the passport and visa were not Dia’s, by opining that handwriting analysis is too uncertain to accord it much weight. This outright rejection of McNally’s testimony was unfounded. McNally’s expertise was unchallenged. McNally was trained by and worked for the U.S. government, has testified as an expert in various courts more than one hundred times, and belongs to two relevant professional societies, one of which has officially certified him an examiner of questioned documents. In his testimony, he clearly concluded that the signatures on the passport and visa were not Dia’s, thus lending support to Dia’s story. McNally only qualified this conclusion by noting that he preferred to use original documents (some of the documents he had examined were not originals), and by conceding that “anything is possible” with regard to signatures.

The IJ supported her conclusion that handwriting analysis is not probative evidence by referring to United States v. Van Wyk, 83 F.Supp.2d 515 (D.N.J.2000). However, Van Wyk does not stand for this proposition, but, instead, deals with the admissibility of a forensic stylistics expert’s testimony under the Federal Rules of Evidence. Evidence presented in an immigration hearing needs to be “fair,” “reliable,” and “trustworthy,” not necessarily admissible in federal court. Ezeag-wuna, 325 F.3d at 405. More importantly, we have found that “[ejxpert testimony as to the similarities in handwriting is generally admissible” in federal court, United States v. McGlory, 968 F.2d 309, 346 (3d Cir.1992), and McNally’s curriculum vitae lists dozens of courts in which he has testified as an expert. Therefore, for this reason as well, the chief reason articulated by the IJ for her rejection of Dia’s testimony on this count — her conclusion that these were Dia’s authentic documents — is not supported by coherent reasoning or by record evidence.²⁷

3. Future Persecution

The final area of Dia’s testimony rejected by the IJ pertained to whether Dia would suffer future persecution if returned to Guinea. We emphasize that we address this aspect only to determine any errors in the IJ’s credibility determination, not whether Dia should be found eligible for relief from removal. With that said, the IJ’s conclusion here, again, lacks the necessary support.

The IJ decried that “[tjhere is no evidence that low-ranking persons in the RPG are being arrested and detained,” and noted that the only incidence of violence involving Dia during the approximately three years after Dia joined the RPG involved his wife, not Dia. The IJ also expressed doubt about Dia’s testimony that the military was pursuing him because it thought that he was helping Alpha Conde escape from jail. She stated that it made little sense that the military thought Dia could enable Conde to escape, although she did not explain this further.

Once again, there are a number of problems with the IJ’s fact-finding regarding this aspect of Dia’s testimony. First, Dia did present evidence that the Government persecuted low-ranking persons in the RPG. He testified to his own past persecution, the rape of his wife as a means of menacing him, and the beating of local RPG members at the local headquarters, including the beating of Dia’s father that resulted in death. See Baballah v. Ashcroft, 335 F.3d 981, 988 (9th Cir.2003) (“Threats and attacks can constitute persecution even where an applicant has not been beaten or physically harmed.... Violence directed against an applicant’s family members provides support for a claim of persecution and in some instances is sufficient to establish [a well-founded fear of] persecution.”). There are also reports in the record documenting the Guinean government’s persecution of RPG members on all levels, including poll watchers like Dia, and a letter from the RPG attesting to the fact that the chief of the neighborhood and military officers attempted to force Dia to fight and that they beat his wife. In fact, Dia points out that the IJ actually states in her opinion that the Guinean government had arrested demonstrators who sought the release of Conde.²⁸

Dia also urges that the IJ placed far too much weight on the fact that neither Dia nor his wife was the victim of any violence for the two years between the time Dia joined the RPG and the alleged rape of his wife and burning of his house, or after that time. He highlights parts of the record that show that the persecution of RPG members “increased significantly” in September of 2000 due to rebel attacks on border towns such as his. He also points out that Amnesty International reported on May 29, 2001, that the government security forces used violence, including torture and rape, “routinely” against members of opposition parties, such as the RPG, and that the security forces “continue to act with impunity.” The report stated that “[t]he long-standing pattern of human rights violations by the Guinean security forces is clear.” As for the four months after the military came to his home but prior to his flight from the country, Dia notes that he was hiding at Sow’s home during that time. Lastly, and perhaps most tellingly, the IJ, again, misstated Dia’s testimony. Dia never testified that the military thought that he was helping Conde escape prison. Rather, he testified that the military told his wife that Dia was helping the rebels so that Conde could be released from prison. When an IJ bases her conclusion on an erroneous interpretation of the testimonial and documentary evidence in the record, it undoubtedly is not supported by substantial evidence.

In sum, the IJ’s adverse credibility determination was based on a combination of misstatements of Dia’s testimony, unreasonably speculative or arbitrary conclusions, inaccurate or insufficiently explained findings of contradictions, and an arbitrary rejection of probative testimony. The “inconsistencies” that the IJ claimed to have found were illusory, and the claimed “implausibility” stemmed solely from conjecture. While we owe deference to the IJ’s findings, our focus, and the essence of our review function, must be on the IJ’s stated reasons. The reasoning in the IJ’s opinion must “bear a legitimate nexus to the finding.” Balasubramanrim, 143 F.3d at 162. We are not to invent explanations that may justify the IJ’s conclusion. Accordingly, we conclude that the IJ’s opinion was not based on substantial evidence; thus, the BIA improperly affirmed the IJ’s decision.²⁹

III. CONCLUSION

Dia asks that we reverse the BIA and grant the relief he seeks. But we are not finding Dia credible. Rather, we are concluding, as we have repeatedly before, that because of the lack of substantial evidence to support the adverse credibility determination, we will remand in order for the agency to further explain or supplement the record. Gao, 299 F.3d at 279. Moreover, as we have recently said: “We will not assess [Dia’s] entitlement to relief based on the record as we have required it to be modified by this opinion because the agency should have the opportunity to do so.” Ezeagwuna, 325 F.3d at 411 (citing Ventura, 537 U.S. at 17-18, 123 S.Ct. 353); see also Secaidar-Rosales, 331 F.3d at 313 (stating, under similar circumstances, that “[t]he IJ should then reach the questions of asylum and withholding of deportation in light of such evidence, but without regard to its prior adverse credibility determination”); Senathirajah, 157 F.3d at 222 (remanding to BIA with instructions to remand to IJ for decision on asylum and withholding application, but without consideration of erroneous adverse credibility finding reversed on appeal). Instead, we will vacate the BIA order.³⁰

sis * * * * *

Accordingly, we will grant the petition for review, vacate the BIA’s order summarily affirming the IJ’s decision, and remand to the BIA.

1 . The basic law underlying Dia's substantive claims is clear. The Attorney General has the discretion to grant Dia asylum if he meets the definition of "refugee” as defined in the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. (INA), i.e., he is unable or unwilling to return to his home country "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). To qualify for withholding of removal, Dia must show that, if deported, there is a "clear probability” that he will be persecuted on account of a specified ground' — here, political opinion — if returned to his native country. See Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir.2003); 8 C.F.R. § 208.16(b). To qualify for relief under the United Nations Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, 23 I.L.M. 1027(CAT), see 8 C.F.R. § 208.17 (2002), Dia must prove that he is more likely than not to be tortured in the country of removal. Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir.2003) (citing 8 C.F.R. §§ 208.16(c)(2) & (4)).

2 . Since the time of Dia’s appeal to the BIA, the streamlining regulations have been moved to a different section of chapter 8 of the Code of Federal Regulations. See 8 C.F.R. § 1003.1(a)(7).

3 . We look at the INA at the time of Dia's appeal to the BIA. The INA was amended by the Homeland Security Act of 2002, Pub. L. No. 107-296, § 471, 116 Stat. 2135, 2192, 2205 (Nov. 25, 2002), which, on March 1, 2003, transferred the functions of the INS to various bureaus, the one dealing with asylum cases being the Bureau of Citizenship and Immigration Services within the Department of Homeland Security. See generally 1 Gordon, Mailman, & Yale-Loehr, Immigration Law and Procedure l:SAl-l-2. The functions of the Executive Office for Immigration Review continue to reside in the Department of Justice, under the direction of the Attorney General. Because of the status of the agency at the time this case was submitted, and for ease of reference, this opinion refers to the agency as the INS or merely as the ''agency.”

4 . The provision reads in whole part:

The term "order of deportation” means the order of the special inquiry officer, or other such administrative officer to whom the Attorney General has delegated responsibility for determining whether an alien is de-portable, concluding that the alien is de-portable or ordering deportation.

8 U.S.C. § 1101(a)(47)(A).

5 . A fortiori, we reject Dia's argument that the INA requires the BIA to conduct de novo review on appeal.

6 . Dia suggests that his argument is tailored only to address how the BIA applied the streamlining regulations to him. However, his attack is broad and not based on any specifics of his case. Therefore, we view his due process challenge as a facial challenge to the procedures.

7 . In fact, we see the summary affirmance process in the streamlining regulations to be little different from the process employed by our court by which we have summarily affirmed rulings of the district court. See 3d Cir. Internal Operating Procedures § 10.6. In the past, we often affirmed via "judgment orders,” with no mention of whether or not we agreed with the reasoning provided by the district court. Indeed, the parties, and, at times, the Supreme Court were left to guess on what grounds we affirmed. It is well-established, however, that this procedure is constitutional. See Furman v. United States, 720 F.2d 263, 264 (2d Cir.1983) ("There is no requirement in law that a federal appellate court’s decision be accompanied by a written opinion.”); United States v. Baynes, 548 F.2d 481, 482 (3d Cir.1977) (holding that an affir-mance by judgment order without an opinion did not constitute a denial of due process of law); see also Fed. R.App. P. 36(a)(2) (outlining the procedure for entering a judgment "rendered without opinion”).

8 . See, e.g., Dickinson v. Zurko, 527 U.S. 150, 162, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999) ("The APA requires meaningful review; and its enactment meant stricter judicial review of agency factfinding than Congress believed some courts had previously conducted.”); Salve Regina Coll. v. Russell, 499 U.S. 225, 234, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991) ("Although some might say that this Court has not spoken with a uniformly clear voice on the issue of deference to a district judge’s determination of state law, a careful consideration of our cases makes apparent the duty of appellate courts to provide meaningful review of such a determination.”); United States v. Mendoza-Lopez, 481 U.S. 828, 837-38, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987) (stating that "there must be some meaningful review of [an] administrative proceeding” where a determination made therein will "play a critical role in the subsequent imposition of a criminal sanction” and that, "at the very least that where the defects in an administrative proceeding foreclose judicial review of that proceeding, an alternative means of obtaining judicial review must be made available (citations omitted)); Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 376, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977) ("We observe only that when the court exercises its discretion in dealing with the problem of laid-off employees in light of the facts developed at the hearings on remand, it should clearly state its reasons so that meaningful review may be had on appeal.”); Fein v. Selective Serv. Sys. Local Bd. No. 7, Yonkers, N.Y., 405 U.S. 365, 380, 92 S.Ct. 1062, 31 L.Ed.2d 298 (1972) (“The rationale is that some statement of reasons is necessary for ‘meaningful’ review of the administrative decision when the registrant’s claim has met the statutory criteria or has placed him prima facie within the statutory exemption, and his veracity is the principal issue.”).

9 . While arguing that we should not give Chevron deference to the streamlining regulations, Judge Stapleton’s reasoning does not really track Chevron, as he is not decrying the agency’s interpretation of the law. Rather, he is decrying the agency’s establishment of a process that, he believes, runs counter to principles of judicial review. This is not a Chevron analysis.

10 . See Abdulai, 239 F.3d at 555 (’’the availability of judicial review necessarily contemplates something for us to review”).

11 . See Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 524-25, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978) (”[T]his Court has for more than four decades emphasized that the formulation of procedures was basically to be left within the discretion of the agencies to which Congress had confided the responsibility for substantive judgments. In FCC v. Schreiber, 381 U.S. 279, 290, 85 S.Ct. 1459, 14 L.Ed.2d 383 (1965), the Court explicated this principle, describing it as 'an outgrowth of the congressional determination that administrative agencies and administrators will be familiar with the industries which they regulate and will be in a better position than the federal courts or Congress itself to design procedural rules adapted to the peculiarities of the industry and the tasks of the agency involved.’ ”).

12 . See Awolesi, 341 F.3d at 229 (suggesting that "we might scour the record for supporting evidence” in cases "in which the BIA affirmed the decision of the IJ without explanation”).

13 . Judge Stapleton points to Ezeagwuna v. Ashcroft, 325 F.3d 396 (3d Cir.2002), as a good example of the conundrum we could face, but there, the BIA had raised and decided the case based on an issue not relied upon by the IJ. We disagreed with the BIA’s view of the issue, and actually had to undo what the BIA had done. The BIA’s opinion was a diversion, not a help, in our reasoning, which, in the end, focused exclusively on the record and the IJ's analysis.

14 . In her opinion, the IJ wrongly stated that the rebels had killed Dia’s father.

15 . It is not clear whether all or only part of his home was destroyed.

16 . Sow is referred lo as "Ableso” in the hearing transcript.

17 . See, e.g., Alvarez Santos v. INS, 332 F.3d 1245, 1254 (9th Cir.2003) (citing Elias-Zacarias, 502 U.S. at 481, 112 S.Ct. 812, for the proposition that the court must "uphold the BIA’s decisions if they are supported by reasonable, substantial and probative evidence in the record"); Albathani, 318 F.3d at 372 (same); Nyirenda v. INS, 279 F.3d 620, 623 (8th Cir.2002) (same); Mansour v. INS, 230 F.3d 902, 905 (7th Cir.2000) (same); see also Lukwago v. Ashcroft, 329 F.3d 157, 167 (3d Cir.2003); Amanfi v. Ashcroft, 328 F.3d 719, 724-25 (3d Cir.2003); Rivera-Jimenez v. INS, 214 F.3d 1213, 1216 n. 4 (10th Cir.2000) ("[N]o federal court has held that this statutory provision modifies the substantial evidence standard previously applied.”). For its part, the Supreme Court has continued to refer to the standard of review language from Elias-Zacarias, in spite of the modified description of the standard in the subsequently-enacted IIRIRA. See INS v. Ventura, 537 U.S. 12, 15, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (quoting Elias-Zacarias, 502 U.S. at 481 n. 1, 112 S.Ct. 812).

18 . In response to our request for their views on the matter, the parties and amici, in their submissions to the en banc court, stated that they agree with our view that § 1252(b)(4)(B) codified Elias-Zacarias. Scholars have agreed with this view as well. See 8 Gordon, Mailman, & Yale-Loehr, Immigration Law and Procedure, § 104.13 (stating that § 1252(b)(4)(B) “essentially codified the standard set forth in INS v. Elias-Zacarias and should have little practical consequence”); Lenni B. Benson, The New World of Judicial Review of Removal Orders, 12 Geo. Immigr. L.J. 233, 239 (1998) (concluding that the standard currently set forth in § 1252(b)(4)(B) is "simply a new way of saying the same thing Congress wrote in former INA § 106 [8 U.S.C. § 1105(a)(a)(4) ]”); see also Pamela Goldberg, Analytical Approaches in Search of Consistent Application: a Comparative Analysis of the Second Circuit Decisions Addressing Gender in the Asylum Law Context, 66 Brook. L. Rev. 309, 317 n.66 (2000) ("As in the pre-1996 law, this standard [§ 1252(b)(4)(B)] has been construed to mean that the circuit court must examine the record to determine whether the conclusions reached by the agency are supported by substantial evidence.”). While the fact that the current version of the standard does not contain a reference to substantial evidence (as did the previous version) is curious, we will not read into this omission a substantive change in this well-established standard. See Dewsnup v. Timm, 502 U.S. 410, 419-20, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992) (refusing "to effect a major change in pre-Code practice that is not the subject of at least some discussion in the legislative history”); see also United Sav. Ass'n of Tex. v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 380, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988) ("a major change in the existing rules would not likely have been made without specific provision in the text of the statute, ... it is most improbable that it would have been made without even any mention in the legislative history.”).

19 . Indeed, the history of the standard in the administrative context is evident from the Supreme Court’s citation in Elias-Zacarias to Columbian Enameling & Stamping Co., 306 , 59 S.Ct. 501, which, predated Elias-Zacarias by over fifty years. See 502 U.S. at 481, 112 S.Ct. 812. In addition, the substantial evidence standard itself has a long history of application to our review of administrative proceedings under the INA. See 75 Stat. 651 (1961); see also 8 U.S.C. § 1229a(c)(3)(A) (2003) ("[N]o decision of de-portability shall be valid unless it is based upon reasonable, substantial, and probative evidence.”); 66 Stat. 210 (1952) (same); 8 U.S.C. § 1252(b)(7) (2003) (setting forth the substantial evidence standard for district court review of a defendant's claim of nationality as a challenge to an order of removal stemming from a violation of 8 U.S.C. § 1253(a)). See generally Woodby v. INS, 385 U.S. 276, 281-82, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966) (discussing the standard of judicial review then found in the INA).

20 . Dia bears the burden of establishing eligibility for relief from removal. 8 C.F.R. § 208.13 (regarding asylum); Mendoza, 327 F.3d at 1287 (regarding withholding of removal); 8 C.F.R. § 208.16 (regarding the CAT).

21 . We also agree with Judge Alito that an IJ is free to assess plausibility. Yet the very law review article that he uses to support the permissibility of drawing inferences is skeptical of plausibility, noting that it is "a highly uncertain standard. ‘Sure, that makes sense’ ... [is] hardly [a] reaction! 1 by which a complex patchwork of past events may be stitched together with confidence.” H. Richard Uvil-ler, Credence, Character, and the Rules of Evidence: Seeing Through the Liar's Tale, 42 Duke L.J. 776, 784 (1993). This skepticism surely applies when the reaction is "that doesn't make sense.” We must be vigilant to ensure that when an IJ's conclusion is based on the implausibility of testimony, the IJ provides at least some insight into why he or she finds that testimony implausible.

22 . Judge Alito makes no reference to the need for “substantial evidence,” but, instead, applies the "no reasonable adjudicator” standard to restrict our review of the IJ’s adverse credibility determination to the situation in which all reasonable adjudicators would affirmatively find Dia to be credible. We have not applied the statutory standard in this manner. See Mulanga, 349 F.3d at 136-38 (finding alternative plausible explanations for "inconsistencies” in an applicant’s testimony where the IJ did not "articulate a foundation for her disbelief,” and rejecting the IJ’s credibility determination as not supported by substantial evidence); Gao, 299 F.3d at 272-73 (indicating that while the substantial evidence standard is highly deferential, we may reverse where adverse credibility determinations appear to be based on speculation, conjecture, or minor inconsistencies alone). We suggest that to read the "no reasonable adjudicator” standard in a way that does away with the need for "substantial evidence” not only guts the statutory standard, but ignores our precedent.

23 . We note that the IJ did not rely on her personal observations of Dia’s demeanor or any other observations to which we must accord an even greater degree of deference. See Aguilar-Solis v. INS, 168 F.3d 565, 570-71 (1st Cir.1999) ("[A] witness’s demeanor is often a critical factor in determining his veracity.”); In re A-S- (Interim Decision), 21 I. & N. Dec. 1106, 1998 WL 99553 (BIA 1998) (stating that, since an Immigration Judge is in dle unique position to observe the testimony of an alien, a credibility finding which is supported by a reasonable adverse inference drawn from an alien's demeanor generally should be accorded a high degree of deference, especially where such inference is supported by specific and cogent reasons for doubting the veracity of the substance of the alien's testimony), cited in Rusu v. INS, 296 F.3d 316, 323 (4th Cir.2002).

24 . For example, Dia and his wife may have determined that he could move more quickly and elude detection more easily if he was traveling alone, not burdened by having to care for a wife and daughter, and that once he was safely out of the country, he could arrange for them to join him. Perhaps the Dias were motivated by concern for their young child, believing that it was in their daughter’s best interest that she and her mother remain at a relative's home rather than go on the run with her father. Maybe the injuries Dia's wife sustained during her assault made it impossible for her to travel, and the knowledge that her husband was on his way to safety was more important to her than having him risk his life to stay with her. It is also possible that Dia simply feared so much for his own life that he was willing to abandon his family. The IJ rejected Dia's testimony without indicating any consideration of these equally likely scenarios.

25 . The Attorney General states that "one inconsistency looms large over the record. Dia testified that when he returned to his home after visiting his uncle, he discovered that his home had been burned, yet when he saw his wife, she does not tell him that their home had been burned along with her alleged report to him that she had been raped and beaten.” The IJ, however, never mentioned this alleged inconsistency; thus, it is not support for the IJ’s credibility determination. See SEC v. Chenery, 318 U.S. 80, 95, 63 S.Ct. 454, 87 L.Ed. 626 (1943) ("We merely hold that an administrative order cannot be upheld unless the grounds upon which the agency acted in exercising its powers were those upon which its action can be sustained.”).

26 . Perhaps most importantly, we fail to see why the IJ placed any emphasis on this particular aspect of Dia's testimony. The name of Sow’s friend did not at all pertain to Dia's claim for relief from removal and Dia’s testimony on this point seemed consistent.

27 . The IJ also stated that, if the signatures were not legitimate, she could not consider the passport and visa as evidence, and Dia, in turn, would have no documentation establishing his country of citizenship. Even if this would have proven fatal to Dia's claim, Dia effectively contradicts this point by noting that the authenticity of his Guinean nation identification card (required by the Government for all citizens) or his RPG membership card, both submitted to the INS, have not been questioned; therefore, he could prove his citizenship without the questioned documents.

28 . The IJ’s error here appears similar to the one we discussed in Gao v. Ashcroft, 299 F.3d 266 (3d Cir.2002), where we rejected an IJ’s “unsupported opinion as to how an authoritarian government operates, including his troubling remarks that he found 'implausible ... the preoccupation of Chinese authorities for someone who is a mere adjunct to the activity that the government is trying to stop or prevent, but that is not at all involved in it herself.’ ” Id. at 278.

29 . In Abdulrahman v. Ashcroft, 330 F.3d 587 (3d Cir.2003), we expressed concern over similar credibility determinations made by the IJ, but affirmed. In that case, the IJ seemingly had misread some of the testimony, id. at 597, placed "a wholly unrealistic burden” on the petitioner to corroborate specific testimony, id. at 598, and expressed doubt unsupported by the record. Id. The chief differ-enees between that case and the one presently before us is that, despite the "troubling” aspect of the IJ's credibility judgment, id. at 599 (Becker, J. concurring), the IJ engaged in "otherwise appropriate adverse credibility determinations,” id. at 598, and that the IJ’s troubling statements often did not pertain to the findings of facts that were crucial to the ultimate determination.

30 . Dia also contends that the Board did not follow the streamlining regulations when it issued an AWO in his case. The Government, in turn, contends that we do not have authority to review whether the Board complied with the streamlining regulations. Because we have found that the IJ erred, we need not address this issue.