Aysar Abdulrahman v. JOHN ASHCROFT, Attorney General of the United States

PRECEDENTIAL
Filed May 21, 2003
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-2513
AYSAR ABDULRAHMAN,
Petitioner
v.
JOHN ASHCROFT,
Attorney General of the United States,
Respondent
On Petition for Review of a Final Order
of the Board of Immigration Appeals
(BIA No. A79-110-854)
Argued February 25, 2003
Before: BECKER, Chief Circuit Judge* and SCIRICA,
Circuit Judge** SHADUR,*** District Judge
(Opinion filed: May 21, 2003)
Kai W. De Graaf (Argued)
64 Fulton Street
Suite 1006
New York, New York 10038
Attorney for Petitioner
* Judge Becker completed his term as Chief Judge on May 4, 2003.
** Judge Scirica began his term as Chief Judge on May 4, 2003.
*** Honorable Milton I. Shadur, United States District Court Judge for
the Northern District of Illinois, sitting by designation.

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Robert D. McCallum
Assistant Attorney General
United States Department of Justice
Civil Division
Alison R. Drucker
Senior Litigation Counsel
Office of Immigration Litigation
Alison Marie Igoe (Argued)
Office of Immigration Litigation
P.O. Box 878, Ben Franklin Station
Washington, DC 20044
Attorneys for Respondent
OPINION OF THE COURT
SHADUR, District Judge:
Aysar Abdulrahman (“Abdulrahman”) is a married citizen
and native of the Sudan who entered the United States on
August 23, 2001 without valid documents and requested
political asylum. Although the Immigration and
Naturalization Service (“INS”) determined that Abdulrahman
had a credible fear of persecution, it initiated removal
proceedings, charging Abdulrahman under 8 U.S.C.
§1182(a)(7)(A)(i)(1)1 with being inadmissible to the United
States and referring him to an immigration judge (“IJ”) for
a hearing. Abdulrahman responded by filing an application
for political asylum and withholding of removal and
requesting relief under the Convention Against Torture.
On December 17, 2002 the IJ denied Abdulrahman’s
applications, finding that he had failed to establish that he
was eligible for relief. Abdulrahman appealed that decision
to the Board of Immigration Appeals (“Board” or “BIA”).
Dismissing Abdulrahman’s appeal, the Board deferred to
the IJ’s adverse credibility determination and affirmed her
1. Further citations to Title 8 provisions will take the form “Section—,”
referring to the Title 8 section numbering rather than to the internal
numbering of the immigration laws.
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decision as supported by the record. This petition for review
followed. We deny the petition.
Administrative and Judicial Standards
As Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001)
has made clear, a decision by the Board that an applicant
is ineligible for asylum constitutes a “final order of removal”
that may be subject to judicial review under Section
1252(a)(1). But where as here the Board has deferred to the
IJ’s decision rather than rendering its own opinion, “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. at 549 n.2; Chen Yun Gao v. Ashcroft, 299
F.3d 266, 271 (3d Cir. 2002)). That review is extremely
narrow in scope. Because Congress has delegated authority
over the immigration laws to the Attorney General, who in
turn vested that authority in the Board, principles of
Chevron deference apply in the immigration context (Chen
Yun Gao, 299 F.3d at 271, citing INS v. Aguirre-Aguirre, 526
U.S. 415, 424 (1999)). Aguirre-Aguirre, id. at 425 further
noted that implications for foreign policy make judicial
deference “especially appropriate in the immigration
context.”
Pursuant to Sections 1158(a)(1) and 1158(b)(1), the
Attorney General may grant asylum2 to an otherwise
removable alien who demonstrates that he or she meets the
definition of “refugee” in Section 1101(a)(42)(A): a person
unable or unwilling to return to his or her country of origin
2. In addition to political asylum, Abdulrahman sought withholding of
removal and relief under the Convention Against Torture, both of which
require the applicant to make a more stringent showing to qualify for
relief. To qualify for withholding of removal, previously called withholding
of deportation, an applicant must show that there is a “clear probability”
that he or she would face persecution if returned to his or her home
country (Li Wu Lin v. INS, 238 F.3d 239, 244 (3d Cir. 2001)). Relief
under the Convention Against Torture and Other Cruel, Inhuman, or
Degrading Treatment or Punishment, 1465 U.N.T.S. 85, 23 I.L.M. 1027
(1984), requires that an alien must prove that he or she is more likely
than not to be tortured in the country of removal (8 C.F.R. §§208.16(c)(2)
and (4)). Further citations to C.F.R. provisions will take the form “Reg.
§ —,” omitting the 8 C.F.R. preface.
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“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.” As Chen Yun Gao, 299 F.3d at 272 has outlined,
quoting Navas v. INS, 217 F.3d 646, 655 (9th Cir. 2000):
In order to establish eligibility for asylum on the basis
of past persecution, an applicant must show “(1) an
incident, or incidents, that rise to the level of
persecution; (2) that is ‘on account of ’ one of the
statutorily-protected grounds; and (3) is committed by
the government or forces the government is either
‘unable or unwilling’ to control.”
Such a showing of past persecution raises a presumption of
a well-founded fear of future persecution (Reg.
§208.13(b)(1)).3 Where past persecution is not established,
“[a]n applicant can demonstrate that she has a well-
founded fear of future persecution by showing that she has
a genuine fear, and that a reasonable person in her
circumstances would fear persecution if returned to her
native country” (Chen Yun Gao, 299 F.3d at 272).
Under those provisions, aliens have the burden to
establish their eligibility for asylum through credible
testimony (Chen Yun Gao, 299 F.3d at 272, citing Abdille v.
Ashcroft, 242 F.3d 477, 482 (3d Cir. 2001)). While aliens
are not required to show that persecution is “more likely
than not,” they must show “a subjective fear of persecution
that is supported by objective evidence that persecution is
a reasonable possibility” (Fengchu Chang v. INS, 119 F.3d
1055, 1066 (3d Cir. 1997)). Testimony alone may be
sufficient to meet that burden — again so long as it is
credible (Chen Yun Gao, 299 F.3d at 272)).
3. That presumption can be rebutted if the INS establishes by a
preponderance of the evidence that the applicant could reasonably avoid
persecution by relocating to another part of his or her country or that
conditions in the applicant’s country have changed so as to make his or
her fear no longer reasonable (Reg. §§208.13(b)(1)(i) and (ii)).
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Background
Most of the evidence at his removal hearing came from
the testimony of Abdulrahman himself. Unless otherwise
indicated, what follows is drawn from that source, although
as explained later the IJ did not credit Abdulrahman’s
account.
Born in 1970 in the southern portion of the Sudan,
Abdulrahman is of Dinghy blood, a subset of the Shilluk
tribe. In 1987 he joined the Southern Student Union while
in high school because “[a]ll those from the south” joined
that organization. As secretary of the Student Union,
Abdulrahman arranged meetings, recruited members,
distributed fliers and educated new members about the
group’s objectives. After graduating Abdulrahman
continued his membership in the Student Union, helping to
train new members by teaching them how to organize and
by leading discussions.
On three occasions over a period of three years
Abdulrahman was arrested because of his membership in
the Student Union. First, he was arrested in March 1999
while preparing fliers at a meeting, when 12 armed security
agents took him and five other Student Union members to
the “Ghost House.” There he was detained in an isolated
dark room for two weeks. Although he was given food and
a small cup of water twice a day, he was verbally assaulted,
beaten daily with sticks and whips and questioned about
his Student Union activities. Before the agents released
him, they forced him to agree in writing to abandon his
political activities. Upon his release, Abdulrahman returned
home. During the hearing Abdulrahman amended his initial
testimony that he sought treatment at a hospital, stating
that he was treated at home with herbal medicines that his
family members had obtained from the hospital.
Roughly one year later, on the night of March 10, 2000,
eight security agents arrested Abdulrahman for the second
time, taking him from his home to a security office in
Birahi. There he was interrogated for two days and again
subjected to torture before being transferred to Khobra
Prison, where he remained for a month. While in prison he
was interrogated about his political activities, verbally
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assaulted and beaten with a whip. Once again, before his
release he was forced to sign a statement promising to
refrain from political activity.
At about 1:00 a.m. on March 3, 2001 security agents
came to Abdulrahman’s house and arrested him for the
third time, once more taking him to the “Ghost House.” He
believes he was arrested because his name was on a list of
Student Union members that had been taken from a
student meeting broken up by security officers earlier that
evening. Abdulrahman was interrogated and detained for
one month, during which he was beaten, whipped and
electrically shocked all over his body. His captors pointed
out that this was his third arrest and threatened that if he
was arrested again they would “liquidate” him. Before he
was released he was again made to agree in writing to
desist from political activities.
Ten days after his release Abdulrahman attended a
public celebration that was halted by police. Abdulrahman
returned home and later that day learned that one of his
friends in the Student Union was missing. Fearing that he
would be arrested again, he fled to Mayo where he stayed
for two months. After discussing his situation with his
friends in the Student Union, Abdulrahman decided to flee
the Sudan. He obtained a certificate of citizenship from the
Sudanese government, procured false travel documents and
left the Sudan on August 18, 2001.
Although Abdulrahman had stated in his initial airport
interview that he did not have any family in the United
States, his uncle Hafiz Suliman (“Suliman”) also testified at
the removal hearing on his behalf. Suliman, who fled the
Sudan in 1996 and had been granted political asylum in
the United States, testified that at the United States
Embassy in the Sudan an applicant will be denied a visa if
he mentions the existence of relatives in the United States.
Suliman further testified that although he had heard from
Abdulrahman’s mother that his nephew was having
problems in the Sudan, he did not know the nature of
those problems and did not have any personal knowledge of
Abdulrahman’s activities with the Student Union. Suliman
also stated that he did not know that his nephew was
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coming to the United States or that Abdulrahman had
traveled to the United States under his uncle’s name.
Abdulrahman did not produce any documentation of his
membership in the Student Union, explaining that he was
afraid to carry such documents himself and that his
contacts in the Sudan could not do so for fear of
government surveillance. He did submit documentary
reports and articles that described the conditions in the
Sudan. Those reports detail the Sudan’s poor record on
human rights and the long-standing ethnic and religious
conflicts between the northern and southern Sudanese
people. Although there was a record of Sudanese security
forces intimidating and harassing students who opposed
the government, the reports made no mention of the
Student Union.
After reviewing Abdulrahman’s testimony and
documentary evidence, the IJ concluded that Abdulrahman
was not credible because his testimony was insufficiently
detailed, internally inconsistent and illogical. She found
that his testimony regarding his involvement with the
Student Union was too general to support his claim. Even
apart from the lack of evidence of his membership in the
group, Abdulrahman had never specifically explained the
organization’s political goals, its internal structure or how
he became its secretary. In addition the IJ observed that
while Abdulrahman’s only explanation for his arrests was
his membership in the Student Union, he had failed to
explain why he in particular was targeted for harsher
treatment than other members of the group. Because there
was no specific testimony or other evidence of
Abdulrahman’s political involvement or activities other than
membership in the Student Union, as well as no specific
explanation of how those activities led to his arrests, the IJ
found no basis for concluding that his testimony about the
arrests was credible.
In addition to such lack of specificity, the IJ questioned
the logic and consistency of Abdulrahman’s claims. She
noted that although he claimed to have been tortured
approximately five months before arriving in the United
States, he bore no physical evidence of mistreatment.
Further, she found that his failure to obtain medical
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treatment for his injuries at a hospital was not explained by
his testimony that the herbal medicine he obtained through
his family members was common practice in the Sudan.
She also found that Abdulrahman’s ability to obtain a
certificate of citizenship from the Sudanese government in
August 2001 was inconsistent with his testimony that he
was in hiding from the government and could not obtain
travel documents or documentation of his membership in
the Student Union.
Even though conceding that the human rights situation
in the Sudan was dismal, the IJ was not persuaded by
Abdulrahman’s testimony that he had been politically active
in the Sudan or suffered the claimed harms. She further
found that Suliman’s testimony was also not credible, as
even his relationship to Abdulrahman remained
questionable. In summary, the IJ concluded that
Abdulrahman was ineligible for relief because he had not
met his burden of proving past persecution and had not
provided sufficient evidence that he had a well-founded fear
of future persecution.
Abdulrahman appealed that decision to the Board,
arguing that the IJ erred in her credibility determination
and that her findings were not substantially supported by
the evidence. Deferring to the IJ and affirming her ruling,
the Board concluded that she had adequately stated the
basis for her adverse credibility determination and that she
had correctly concluded that Abdulrahman had not met his
burden of proof. Abdulrahman timely petitioned this Court
for review of the Board’s decision.
Application of the Relevant Standards
Abdulrahman argues that the Board erred in affirming
the IJ’s ruling for three reasons: (1) the IJ applied the
wrong burden of proof standard to his asylum application,
(2) the IJ impermissibly acted as a witness rather than an
impartial arbiter and (3) the IJ’s findings were not based on
substantial evidence. We address each argument in turn.
Burden of Proof
First, Abdulrahman argues that the IJ erroneously
applied the more stringent “more likely than not” standard,
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applicable to withholding of removal, to his asylum claim
that he suffered past persecution. But because
Abdulrahman failed to raise that issue in his appeal to the
Board, we do not have jurisdiction to consider the question.
Section 1252(d)(1) provides for judicial review of final orders
of removal “only if . . . the alien has exhausted all
administrative remedies available to the alien as of right.”
Thus an alien is required to raise and exhaust his or her
remedies as to each claim or ground for relief if he or she
is to preserve the right of judicial review of that claim
(Alleyne v. INS, 879 F.2d 1177, 1182 (3d Cir. 1989),
concluding that Section 1105(a)(c) (the predecessor to the
current provision) “bars consideration of particular
questions not raised in an appeal to the Board”).
Although Abdulrahman attempts to argue that the
burden of proof issue was raised in his notice of appeal and
written brief to the Board, those efforts are in vain. Even
when those documents are viewed expansively, nothing
there even suggests the issue of the IJ’s asserted
application of the incorrect standard. Abdulrahman’s
appeal to the Board argued two basic propositions: (1) that
the IJ erred in finding that Abdulrahman was not credible
and (2) that the IJ’s findings were not supported by
substantial evidence. Although Abdulrahman did assert (R.
14, 42-43, 44) that the IJ “erred as a matter of law and
discretion,” that generalized claim did not alert the Board to
the issue he seeks to raise for the first time here.4
Abdulrahman alternatively argues that imposition of the
exhaustion requirement should be waived, citing Grant v.
Zemski, 54 F. Supp. 2d 437, 441-42 (E. D. Pa. 1999). But
4. Even if Abdulrahman had posed the issue to the Board, it is hardly
persuasive. Following a recitation of the facts of the case, the IJ outlined
the applicable law, correctly stating the standard for determining
whether Abdulrahman had produced sufficient evidence to establish his
eligibility for asylum. Abdulrahman relies instead on the IJ’s comment in
the context of her credibility determination, in which she concluded that
it was more likely than not that Abdulrahman was not telling the truth.
That determination was independent of her conclusion that
Abdulrahman had failed to meet his burden of proof that he was eligible
for relief. Read as a whole, the IJ’s decision properly states and applies
the law of asylum.
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quite apart from the nonprecedential force of District Court
opinions, Grant, id. at 841 n.5 expressly distinguished the
issue in that case — whether a failure to exhaust would
preclude review of an INS decision to keep the petitioner in
custody during his removal proceedings—from the
unequivocal statutory mandate at issue here, which
expressly requires exhaustion for review of removal
decisions. And McCarthy v. Madigan, 503 U.S. 140, 144
(1992), also sought to be relied upon by Abdulrahman,
made clear that “[w]here Congress specifically mandates,
exhaustion is required.” Although Abdulrahman, like the
petitioner in Grant, has been detained, he cites no authority
for our overriding the exhaustion requirement mandated by
Section 1252(d)(1). Because Abdulrahman could have
raised the wrong-standard issue before the Board and failed
to do so, review on that ground has been foreclosed.
IJ Bias
Second, Abdulrahman contends that the IJ improperly
acted as a witness at the removal hearing, conducting the
proceedings in a biased manner that violated his due
process rights.5 We review de novo whether Abdulrahman’s
due process rights were violated (Lee Moi Chong v. INS, 264
F.3d 378, 386 (3d Cir. 2001)).
Abdulai, 239 F.3d at 549 confirmed an obvious truth:
“Despite the fact that there is no constitutional right to
asylum, aliens facing removal are entitled to due process.”
In the context of an immigration hearing, due process
5. Here the government contends that Abdulrahman failed to exhaust
this issue as well, so that we are also foreclosed from reviewing his due
process argument. Although grounded in procedural due process, a
claim of IJ bias remains subject to administrative exhaustion
requirements mandating that the issue be raised before the Board (see
Sanchez-Cruz v. INS, 255 F.3d 775, 780 (9th Cir. 2001)). While
Abdulrahman’s appeal to the Board did not frame the matter in due
process terms in so many words, both his notice of appeal and his later
brief to the Board argued that the IJ impermissibly based her decision
on her own speculative beliefs rather than on the evidence. As such, he
adequately alerted the Board to the issue, thus preserving it for our
review.
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requires that “aliens threatened with deportation are
provided the right to a full and fair hearing” that allows
them “a reasonable opportunity to present evidence” on
their behalf (Sanchez-Cruz, 255 F.3d at 779 (internal
quotation marks omitted)). And as Schweiker v. McClure,
456 U.S. 188, 195 (1982) recognized, it is well established
that “due process demands impartiality on the part of those
who function in judicial or quasi-judicial capacities” (see
also Marincas v. Lewis, 92 F.3d 195, 204 (3d Cir. 1996),
describing the need for a neutral judge as one of the most
basic due process protections). As judicial officers, IJs have
a “responsibility to function as neutral and impartial
arbiters” and “must assiduously refrain from becoming
advocates for either party” (Aguilar-Solis v. INS, 168 F.3d
565, 569 (1st Cir. 1999)).
Abdulrahman does not cite specifically to the transcript
of his removal hearing to support his allegation of bias, nor
does he directly challenge any of the IJ’s statements or
conduct during that proceeding. Instead he points generally
to the IJ’s comments in her opinion about the availability of
hospitals in the Sudan, about the time required for scars to
heal and about the structure and functioning of the
Sudanese government offices that issue birth certificates
and travel documents, contending that in each of those
instances the IJ based her conclusions on her own
speculative beliefs rather than on evidence in the record.
From those things he concludes that the IJ “clearly
conducted the underlying proceedings in a manner that
was fundamentally unfair, partial, and prejudicial.”
Abdulrahman’s allegation that the IJ acted as a witness
against him is unfounded. In the hearing transcript the IJ
made no statements expressing her own opinions as to
Sudanese medical practices or Abdulrahman’s lack of
scarring, or as to the issuance of official Sudanese
documents. Instead, in evaluating his credibility and
issuing her ruling, the IJ questioned the logic of
Abdulrahman’s factual assertions on those matters. Such
an assessment is not improper for a trier of fact and does
not amount to acting as a witness. Indeed, that type of
evaluation is integral to the weighing of testimony and
evidence that is typically required to make a credibility
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determination. As the late great Judge Jerome Frank once
put it (In re J.P. Linahan, Inc., 138 F.2d 650, 654 (2nd Cir.
1943)):
Impartiality is not gullibility. Disinterestedness does
not mean child-like innocence. If the judge did not
form judgments of the actors in those court-house
dramas called trials, he could never render decisions.
That said, however, it must be added that there were
places where the IJ did go beyond the bounds of propriety
to make some additional and problematic generalized
assertions of her own. While as discussed below we are
understandably troubled by some of those comments, in
the context of the record as a whole there is insufficient
evidence to conclude that the overall proceedings were
biased in violation of Abdulrahman’s right to due process.
Thus the IJ did not unreasonably impose restrictions on
Abdulrahman’s presentation of either testimonial or
documentary evidence, instead affording him the
opportunity to testify fully. While he was on the stand she
did not obstruct or denigrate his testimony. In fact, she
interjected only to allow him to clarify inconsistent
responses or to give him the opportunity to respond in
further detail. Although the language used by the IJ during
the hearing and in her opinion does reflect an annoyance
and dissatisfaction with Abdulrahman’s testimony that is
far from commendable, such a lack of courtesy and the
absence of the expected level of professionalism do not rise
(or, more accurately, fall) to a violation of due process
(Aguilar-Solis, 168 F.3d at 569, citing Liteky v. United
States, 510 U.S. 540, 555-56 (1994)).
Substantiality of the Evidence
Finally Abdulrahman contends that the IJ’s adverse
credibility determination was not based on substantial
evidence in the record. We review the IJ’s factual
determination of an alien’s eligibility for asylum under the
substantial evidence standard (Chen Yun Gao, 299 F.3d at
272)). Findings of fact by the IJ, including adverse
credibility determinations, will be upheld to the extent that
they are “supported by reasonable, substantial, and
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probative evidence on the record considered as a whole”
(id.). INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992)
has set a high hurdle by permitting the reversal of factual
findings only when the record evidence would “compel”
(emphasis in original) a reasonable factfinder to make a
contrary determination.
Implementing the Elias-Zacarias standard, Chen Yun
Gao, 299 F.3d at 272 and 276 has explained that although
adverse credibility determinations cannot be based on
speculation or conjecture, such a finding will be afforded
substantial deference where it is grounded in evidence in
the record and where the IJ provides specific cogent
reasons for her determination. As Sarvia-Quintanilla v. INS,
767 F.2d 1387, 1395 (9th Cir. 1985) had earlier cautioned:
An immigration judge alone is in a position to observe
an alien’s tone and demeanor, to explore
inconsistencies in testimony, and to apply workable
and consistent standards in the evaluation of
testimonial evidence. He is, by virtue of his acquired
skill, uniquely qualified to decide whether an alien’s
testimony has about it the ring of truth. The courts of
appeals should be far less confident of their ability to
make such important, but often subtle,
determinations.
Arguing that the IJ’s ruling lacked substantial evidence,
Abdulrahman charges that the IJ failed to provide specific
cogent reasons for her determination that he lacked
credibility. He argues that many of the reasons that she
provided either were inconsistent with the evidence or were
unsupported by anything in the record. We agree that some
of the IJ’s comments are indeed problematic, but in the end
those deficiencies do not call for reversal under the
stringent test dictated by Elias-Zacarias.
For example, Abdulrahman points out that the IJ
discredited his testimony because he assertedly failed to
explain why he alone among the members of the Student
Union was targeted by security forces. To the contrary,
Abdulrahman’s testimony was that other members of the
Student Union were also harassed and arrested. But the
IJ’s disbelief that Abdulrahman was singled out is arguably
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supportable as to his claim that his membership in the
Student Union prevented him from obtaining the travel
documents necessary to leave the Sudan, but that other
members of the Student Union were able to obtain those
documents on his behalf. It was reasonable for the IJ to
presume that if Abdulrahman could not obtain such
documents, other members of his persecuted group would
be likewise unable, and Abdulrahman offered no
explanation for their ability to do what he could not.
Abdulrahman also properly challenges the IJ’s criticism
of Abdulrahman’s testimony about the customary use of
alternative medicine and the limited availability of hospitals
in the Sudan. In disparaging that testimony, the IJ
impermissibly commented that “all countries have hospitals
and doctors, however [sic] he wish to provide this false
information regarding medical institutions in his country,
so be it.” That statement had no basis whatever in the
record and was therefore highly irregular. Although the IJ
went on to say that if Abdulrahman had truly been treated
with herbal medicine rather than at a hospital, he had
offered no evidence to substantiate such treatment, we view
that as placing a wholly unrealistic burden on
Abdulrahman—what could really have been available to
him in the way of confirmatory evidence on that score?
That is exemplary of the problematic mindset that the IJ
appears to have brought to the case, and though it does not
lead us to overturn her decision under the standard of
review we must apply, our entire panel shares the views
expressed in the concurring opinion in that respect.
In addition the IJ discredited Abdulrahman’s explanation
that the Sudan’s security forces intentionally utilized
torture techniques that would not leave scars. Although
there was no evidence in the record either way about
whether electric shocks or other forms of torture (including
beatings) would leave scars and if so how long those scars
would take to heal, the IJ found it “highly improbable” that
Abdulrahman could have been tortured in March 2001 and
yet arrive in August 2001 with no marks on his body or
other evidence of physical mistreatment. Again the IJ’s
characterization is troubling, but in the end she went on to
note her lack of medical expertise and refrained from
addressing the matter further.
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Along similar lines, the IJ questioned Abdulrahman’s
testimony that although he was in hiding he was able to
obtain an identity document from the Sudanese Bureau of
Passports, Immigration, Citizenship and Identification
Cards because the office that issued his citizenship
certificate was separate from the office that issued travel
documents. As Abdulrahman points out, whether or not
such documents are in fact issued by separate Sudanese
offices was nowhere in evidence. But the IJ did not go so
far as to make a finding on the structure of those offices.
Rather she expressed her doubt that someone in hiding
from the government could so easily obtain a document
from the government just days before he was forced to flee
the country to avoid being arrested and tortured by that
government.
In several instances, then, the IJ fell well short of what
we are entitled to expect from judicial officers—her
commentary was not confined to the evidence in the record
and smacked of impermissible conjecture. While that was
clearly improper, it remains true that the IJ engaged in
otherwise appropriate adverse credibility determinations.
But the overriding consideration here must be the
extraordinarily deferential standard mandated by Elias-
Zacarias. In those terms we cannot conclude from the
evidence as a whole that any reasonable factfinder would be
compelled to find that Abdulrahman’s testimony was
credible. It is certainly true, as also stressed by the IJ, that
Abdulrahman’s testimony about his political activities in
the Sudan and the nature of the Student Union was
remarkably generalized. Although he testified that the
Student Union was concerned with the human, political
and economic rights of the southern Sudanese, he offered
no specific details about the organization’s activities or
objectives. Nor did he identify any specific meetings, rallies
or functions organized or attended by the Student Union,
even though he had been a member for almost 15 years.
Abdulrahman’s description of his role as Student Union
secretary was similarly lacking in specifics and provided no
input about the internal structure or leadership of the
organization. Overall he failed totally to explain how his
asserted activities with the Student Union brought him to
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the attention of the security forces and led to his three
claimed arrests.
Moreover, the documentary evidence that Abdulrahman
did submit did not provide any support to his generalized
testimony. Thus he failed to submit any proof of his
membership in or involvement with the Student Union,
explaining that it was too dangerous for him to have carried
or obtained proof of his membership. And despite his claim
that all those in the south joined the organization, none of
the country reports that he submitted even mentions the
Student Union or its place in the Sudan’s political
landscape. While Abdulrahman’s asylum claim was based
almost completely on his arrests because of his
membership in the Student Union, he provided nothing
other than his testimony to establish that the organization
even existed. Given the amorphous nature of the evidence
in that respect, we cannot quarrel with the IJ’s ultimate
determination that Abdulrahman’s presentation lacked the
necessary level of credibility.
On balance, then, we conclude that it was not
unreasonable for the IJ to find that Abdulrahman’s
testimony was insufficiently detailed to support his asylum
claim. Hence we cannot hold that the record evidence
would compel a determination contrary to that made by the
IJ and upheld by the Board.
Conclusion
Because Abdulrahman failed to raise the issue before the
Board as to whether the IJ had applied an excessively
stringent standard to his claim for asylum, we are
precluded from reviewing his claim on that ground. Next,
although we are certainly troubled by some of the
comments in the IJ’s opinion, we cannot conclude that the
proceedings were biased against Abdulrahman such that
his due process rights were violated.
Finally, it is distressing that the IJ seems to have failed
to adhere to the obligation of every judicial officer to assure
not only the fact but also the appearance of justice. Indeed,
that obligation is especially important where, as in this
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class of cases, the determinations of the trier of fact are
subjected to particularly narrow appellate scrutiny.
But in the end the dismissal of Abdulrahman’s
applications was supported by substantial evidence, in that
a reasonable factfinder could conclude from the record that
Abdulrahman had not met his burden of establishing his
eligibility for asylum. Accordingly, his petition for review is
DENIED.
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BECKER, Circuit Judge, concurring:
The opinion of the Immigration Judge (IJ) is laden with
statements such as the following, which I find troubling in
terms of their viability as credibility judgments:
(1) “The respondent testified that he was treated with
herbs, by his grandmother and mother, and told the Court
these are the way things are done in Sudan, people do not
go to the hospital as they do here in the Western World.
Again, that is not the case, all countries all [sic] have
hospitals and doctors, however, he wish [sic] to provide this
false information regarding the medical institution about
his country, so be it.” [Op. at 12-13.] However, based upon
available information about the Sudan, the Respondent’s
contention seems reasonable. At all events, the basis for the
IJ’s conclusion seems far from clear; rather, it seems quite
tenuous.
(2) “I notice in his asylum application he conveniently
stated that fortunately, all of his beatings left him without
scars. If respondent was beaten as much as he was beaten
on March 3, 2001, given he left his country in August
2001, it’s highly improbable that all of his scars would have
been healed by the time his asylum application was
prepared and submitted to the Court. As I am not a
medical physician, the Court will not address this matter
any further. But clearly, that statement is highly
improbable.” [Op. at 15.] We, on the other hand, can easily
conceive of beatings that do not leave scars; they might
even be administered in such a way as not to do so.
(3) “It’s very unlikely that the respondent would have
been able to travel from other destinations to the United
States under Mr. Hafiz Sulman’s name, without Mr.
Sulman’s knowledge. There must have been some
arrangements made between the two.” [Op. at 18.] In
contrast, we do not know why Abdulrahman could not
have traveled without Sulman’s knowledge. Indeed, how
could he have communicated with Sulman under the
circumstances?
The Immigration Judge’s statements barely cross the line
into the realm of fact finding, although Judge Shadur is
correct that, in view of our extremely narrow standard of
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review, we are constrained to view them as so doing. While
I join in Judge Shadur’s opinion, I write separately to
highlight these statements and to express my extreme
discomfiture with them, as they border on the cavalier.
Indeed, in my view, they come extremely close to
constituting reversible error. Judges Scirica and Shadur
join in this concurrence.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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