Lek Berishaj v. JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES On Petition for Review of an…

PRECEDENTIAL
IN THE UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
_______________________________
NO. 03-1338
___________
LEK BERISHAJ,
Petitioner
v.
JOHN ASHCROFT, ATTORNEY
GENERAL
OF THE UNITED STATES
_______________________________
On Petition for Review of an Order of
the
Board of Immigration Appeals
(Board No. A74-881-632)
_______________________________
Argued June 25, 2004
Before: AMBRO, BECKER and
GREENBERG, Circuit Judges
(Filed: August 5, 2004 )
VISUVANATHAN
RUDRAKUMARAN (ARGUED)
875 Avenue of the Americas
New York, NY 10001
Attorney for Petitioner
BRENDA M. O’MALLEY (ARGUED)
LYLE D. JENTZER
LYNNE R. HARRIS
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Attorneys for Respondent
________________________
OPINION OF THE COURT
________________________
BECKER, Circuit Judge.
Lek Berishaj, an ethnic Albanian from
Montenegro, petitions for review of a
decision of the Board of Immigration
Appeals (BIA), which affirmed without
opinion the decision of an immigration
judge (IJ) denying him asylum and relief
under the Convention Against Torture and
Other Cruel, Inhuman or Degrading
Treatment or Punishment (CAT). Under
our caselaw, see Dia v. Ashcroft, 353 F.3d
228 (3d Cir. 2003) (en banc), it is the IJ’s
decision that we review, no mean task here
because the IJ’s opinion is cursory, thinly
reasoned, and discusses the case without
any reference to the governing legal
standards. Nonetheless, we understand the
IJ to have concluded that Berishaj’s
testimony regarding past persecution was
not credible; that, even taking Berishaj’s
testimony as true, country conditions in the
Federal Republic of Yugoslavia (which
embraced Montenegro at the time of the
IJ’s decision) had changed such that
Berishaj could no longer have a well-

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founded fear of future persecution; and
that Berishaj’s CAT claim failed because
there was no objective evidence that a
return to Montenegro would expose him to
torture.
Reviewing the IJ’s decision under the
“substantial evidence” standard, see id. at
247-50, we conclude that the IJ’s rejection
of Berishaj’s asylum claim cannot stand.
First, the IJ’s adverse credibility
determination has no basis in the record.
Second, the IJ misapplied the law in
concluding that changed conditions in
Montenegro have obviated any persecution
claim that Berishaj might once have had.
In such a posture, the burden of showing
changed country conditions is on the
government, see 8 C.F.R. 208.13(b)(1)(ii),
and we hold that the government must
rebut the alien’s well founded fear of
future persecution with specific evidence,
which it did not produce. We will
therefore grant the petition for review of
the decision insofar as it rejected
Berishaj’s asylum claim, and his related
claim for withholding of removal. We
leave it to the Agency to make a proper
determination in the first instance of the
merits of those claims. With respect to
Berishaj’s CAT claim, the IJ’s decision
passes muster (though barely), and we will
deny the petition for review of the IJ’s
CAT decision.
As we will explain in greater detail, we
think this case to be a particularly apt
example of a disturbing trend we often
encounter in petitions for review of the
BIA. In many cases in which country
conditions are at issue, the administrative
records are grossly out-of-date, requiring
us to engage in the rather artificial exercise
of ruling on situations that existed several
years in the past, but do not exist today.
Here, we work from an administrative
record in which the most recent country
conditions report is over four years out-of-
date. While SEC v. Chenery Corp., 318
U.S. 80 (1943), and the constraints of
process-based review of administrative
decision making prevent us from
supplementing a grossly out-of-date
administrative record, they do not
command blindness to the emerging
pattern of stale records. Considering the
rapid, frequent political changes in
countries from which asylum and CAT
applicants usually come, and the
potentially dire consequences of sending
such an applicant back to his country of
origin to face possible persecution or
torture on the basis of such a stale report,
we call on Congress, the Department of
Justice, the Department of Homeland
Security, and the BIA to improve the
structure and operation of the system, so
that all may have the confidence that the
ultimate disposition of a removal case
bears a meaningful connection to the
merits of the petitioner’s claim(s) in light
of contemporary world affairs.
I. The Administrative Record and the
IJ’s Decision
As will become clear, the IJ’s
credibility determination rested on his
rejection of a fairly narrow slice of
Berishaj’s testimony. But we will discuss

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

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continued to function underground, with
classes held in private homes in Pristina, a
major city in Kosovo. Berishaj’s uncle,
Palok, with whom Berishaj lived at the
time, was one of the leading organizers of
the illegal university, and he recruited
Berishaj to find private homes in which to
hold classes. Because of his activities,
Palok was arrested in 1991, and again in
1994, when he was detained and beaten for
several days. Berishaj was arrested in
Pristina in the spring of 1992 for his
assistance to the illegal university; he was
beaten with a rifle butt and detained
overnight. Not trusting the Serbian
doctors at the hospital, Berishaj was
treated by an Albanian doctor practicing
illegally, and returned to Montenegro a
few weeks later.
Shortly after returning to Montenegro,
Berishaj was inducted into the army; he
was sent to serve in Serbia, where he spent
eleven months. He w as easily
recognizable as an ethnic Albanian, among
a predominantly Serbian army—“Berishaj”
is a well-known Albanian name; indeed,
one Sali Berishaj was the former president
of Albania. In the army, Berishaj served
as a tank gunman following a three-month
training period in which he learned to
operate the tank gun from instructions in
Serbian. In the tank crew of three or four,
Berishaj was the lowest in rank, taking
orders from Serbs in charge of the tank.
Berishaj did not, in these eleven months,
go to war in Bosnia. Berishaj attributed
this to the Serbian officers not trusting
Albanians enough to send them to war.
Berishaj’s duties mostly consisted of
cleaning the tank gun and guarding the
tank. He was beaten at the direction of
Serbian officers for singing songs in
Albanian, and he stopped speaking
Albanian publicly, relying on the Serbian
he learned while in the army. After
completing eleven months of military
service, Berishaj was discharged. He
returned to Montenegro, then to Kosovo
briefly to take university examinations,
and then back to his parents’ home in
Montenegro.
I n D e c e m b e r 1 9 9 3 , f o u r
p o l i c e m e n — a p p a r e n t l y m i l i t a r y
police—came to his parents’ house at
midnight and took him to fight in Bosnia.
He served again as a gunman, and was
ordered to destroy buildings, houses, and
shoot at the army and at Muslim civilians
in Bosnia. Berishaj explained that he had
no choice but to shoot civilians: “I would
either, you know, shoot or [the Serbians]
would kill me.” Ethnic Albanians in the
army were not trusted to shoot without
being under Serbian control. For example,
Berishaj explained, “When we were in the
tank, you know, using the gun, we would
have somebody behind us [a Serbian] with
an automatic gun. . . . Their function was
that if somebody does not obey the order
to shoot with a gun, they would kill him.”
Berishaj spent two months in the army this
time, and escaped during the night in
February 1994. He returned to his parents’
home in Montenegro.
Fearing that he would be arrested and
returned to the army, Berishaj crossed
illegally from Montenegro into Albania,
where he spent the next fourteen months in

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

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

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

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

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II. Standard of Review
Because the BIA affirmed the decision
of the IJ without opinion, see 8 C.F.R. §
3.1(e)(4), the decision of the IJ is the final
agency determination, which we are called
upon to review. See Dia, 353 F.3d 228.
We have jurisdiction under 8 U.S.C. §
1252 over this timely petition for review of
a final determination of the BIA.
We review the Agency’s findings of
fact—such as the IJ’s credibility
determinations, his findings on the CAT
claim, and his findings regarding changed
country conditions— under 8 U.S.C. §
1252(b)(4)(B), which provides that
“administrative findings of fact are
conclusive un les s any reasonable
adjudicator would be compelled to
conclude to the contrary.” As we
explained in Dia, we 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
[(1992)].” 353 F.3d at 247; see also
Sevoian v. Ashcroft, 290 F.3d 166, 171 (3d
Cir. 2002) (“[The Illegal Immigration
Reform and Immigrant Responsibility Act]
codifies the language the Supreme Court
used in Elias-Zacarias to describe the
substantial evid ence standard in
immigration cases.”). We concluded in
Dia that
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
p a r t i c u l ar f i n d i n g o n t h e
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.
353 F.3d at 249.
III. Berishaj’s Application for Asylum
A. The Asylum Claim
1. The Adverse Credibility
Determination
Berishaj applied for asylum and
withholding of removal based on past
persecution and a well-founded fear of
future persecution if he is removed to
Montenegro. In Gao v. Ashcroft, 299 F.3d
266 (3d Cir. 2002), we laid out the
statutory framework for asylum claims and
the relevance of adverse credibility
determinations to the asylum inquiry:
A grant of asylum under §
1158(b)(1) of the Immigration and
Nationality Act (INA) allows an
otherwise removable alien to stay
in the United States. The Attorney
General “may” grant asylum to an
alien who demonstrates that he/she
is a refugee: a person unable or
unwilling to return to the country of
that person’s nationality or habitual

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

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

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12
The en banc Court in Dia emphasized
exactly this point in rejecting the adverse
credibility determination made by the IJ in
that case:
“[W]hile we defer to the IJ on
credibility questions, that deference
is expressly conditioned on support
in the record,” Nagi El Moraghy [v.
Ashcroft], 331 F.3d [195,] 205 [(1st
Cir. 2003)], and “[d]eference is not
due where findings and conclusions
are based on inferences or
pre s u m p t i o n s 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
t h a t “ [ a ] d v e r s e c r e d i b i l i t y
d e t e r m i n a t i o n s b a s e d o n
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 [v.
Ashcroft], 331 F.3d [297,] 307 [(2d
Cir. 2003)] (“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
s t a te d d i s b e li e f .’” (quotin g
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.
Id. at 249-50 (some alterations in original).
None of the IJ’s reasons for finding
Berishaj incredible withstand scrutiny in
light of the record. We address them
seriatim. Most obviously wrong is the IJ’s
conclusion that Berishaj’s testimony about
his experience in the military was “not
supported by one scintilla of evidence.”
As we have already described, see supra
Part I.B.2, there is at least one strikingly
similar published account from another
ethnic Alb ania n in the Serb ian
army—Adem Krasniqi’s story as published
in Illyria. Irrespective of Illyria’s
reliability vel non as an unbiased source of
news from the Balkans, the article was in
the administrative record and the IJ was
obliged to address it. Moreover, the IJ is
in no position to comment from his own
experience on the plausibility of the cruel
practices employed in one of the most
heinous conflicts of the modern era. If
anything, the tactic of forcing one ethnic
minority to kill another is entirely

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13
consistent with multiparty ethnic warfare,
and there is no substantial evidence on
which to conclude otherwise. It seems
eminently plausible that the Serbians
would require the Albanians to be the ones
to shoot the Bosnians, and that they would
enforce that role in the manner
described—by having a gunman behind
each Albanian. To describe this as a Mel
Brooks scenario seems to us bizarre.
We also cannot understand the IJ’s
incredulity at Berishaj’s ability to learn
enough Serbian to clean and operate a tank
gun as a low-ranking soldier. Berishaj
testified that he did not find Serbian
difficult to learn, and that he had to stop
speaking Albanian publicly—wh ich
suggests that he was effectively immersed
in Serbian for several months. These are
both candid and credible statements that
the IJ did not address. What is more, even
though the IJ’s hearing in January of 1998
(no more than a year after Berishaj arrived
in the United States) was conducted with
an Alb anian interpreter, Berishaj
repeatedly demonstrated that he was
listening to the questions in English, and
not waiting for the interpreter’s translation.
At times, Berishaj even responded in
English. English is a difficult language to
learn, but Berishaj apparently has some
facility for picking up languages, and this
only enhances the credibility of his claim
to having learned basic Serbian in a few
months. In light of all this, we do not see
how a reasonable factfinder could
conclude that his claim that he learned
enough Serbian to clean and operate the
tank gun was not worthy of belief.
We also note the basic misstatement of
the record in the IJ’s description of
Berishaj’s testimony—Berishaj never
testified that he was “placed in command”
of the tank, or “in control of the tank”; he
testified that he was at the bottom of the
chain of command. There is no evidence
contra. In sum, nothing of the IJ’s adverse
credibility determination survives even
basic scrutiny, and we cannot accept the
IJ’s determination as supported by
substantial evidence
The IJ also rejected Berishaj’s
testimony on the ground that it was
“plagued by . . . uncorroborated
information.” To the extent that the IJ
meant that Berishaj’s account of his
military experience could not be squared
with the experiences of other ethnic
Albanians in the Serbian army in the mid-
1990s, we think our discussion above
amply refutes any notion that Berishaj’s
experience was implausible. To the extent
that the IJ complained of the absence of
testimonial or documentary materials in
the record to support aspects of the factual
account given by Berishaj, we are at a loss
to com preh end th e IJ— requ iring
corroborative evidence in this situation
would run counter to our precedent, BIA
precedent, and common sense.
In Abdulai, 239 F.3d at 554, we held
that “the BIA may sometimes require
otherwise-credible applicants to supply
corroborating evidence in order to meet
their burden of proof.” In so doing, we
refused to hold invalid the rule of
corroboration laid down by the BIA in S-
M-J-, 21 I. & N. Dec. 722. We explained

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14
that S-M-J- “contemplates a three-part
inquiry: (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 (internal quotation marks omitted);
see also Mulanga v. Ashcroft, 349 F.3d
123, 133-37 (3d Cir. 2003).
The IJ plainly did not heed even the
first step, which is simple common sense:
There are matters on which it is plainly
unreasonable to expect any kind of
corroboration. Wartime persecution is
surely among these matters—exigency,
strife, and destruction all conspire to
destroy what records there might once
have been. Evidence documenting
military persecution and abuse is rarely
made in the first place. Testimony is
nearly impossible to come by because of
death and dispersal in the ranks. The IJ
had no grounds on which to expect
corroboration from Berishaj.
2. Changed Country Conditions
The IJ’s alternative reason for rejecting
Berishaj’s asylum claim was that country
conditions in Montenegro had improved
by 2000 to the point that Berishaj’s stories
of past persecution—even if they were
credible—no longer provided a basis for a
well-founded fear of future persecution.
As we have noted, an alien who offers
credib le tes tim on y regarding past
persecution is presumed to have a well-
founded fear of future persecution. See 8
C.F.R. § 208.13(b)(1); Abdulrahman, 330
F.3d 587. But 8 C.F.R. § 208.13(b)(1)(i)
also provides that
an immigration judge . . . shall deny
the asylum application of an alien
found to be a refugee on the basis
of past persecution if [it] is found
by a preponderance of the evidence
[that] [t]here has b e e n a
f u n d a m e n t a l c h a n g e i n
circumstances such that the
applicant no longer has a well-
founded fear of persecution in the
applicant’s country of nationality .
. . on account of race, religion,
nationality, membership in a
particular social group, or political
opinion
The burden of proof in a changed-country-
conditions rebuttal is on the government.
8 C.F.R. § 208.13(b)(1)(ii).
Other Courts of Appeals have
recognized a limitation on the inferences
that may be drawn from evidence of
changed country conditions. The First,
Seventh, Ninth, and Tenth Circuits agree
that evidence of changed country
conditions can successfully rebut an
alien’s fear of future persecution based on
past persecution only if that evidence
addresses the specific basis for the alien’s
fear of per s e cution; generalized
improvements in country conditions will
not suffice as rebuttals to credible
testimony and other evidence establishing
past persecution. The other Courts of
Appeals, including this Court, appear to

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15
have had no occasion to consider the
matter.
As the Court of Appeals for the Ninth
Circuit has explained, “[the] INS is
obligated to introduce evidence that, on an
individualized basis, rebuts a particular
applicant’s specific grounds for his
well-founded fear of future persecution.
Information about general changes in the
country is not sufficient.” Rios v.
Ashcroft, 287 F.3d 895, 901 (9th Cir.
2002) (internal quotation marks and
citations omitted); accord Krastev v. INS,
292 F.3d 1268, 1276-77 (10th Cir. 2002)
(granting petition for review, noting that
the country report relied on by the BIA did
nothing to rebut petitioner’s fear from
local, not national, authorities in
Bulgaria); Gailius v. INS, 147 F.3d 34, 36
(1st Cir. 1998) (“It is well established that
general changes in country conditions do
not render an applicant ineligible for
asylum when, despite those general
changes, there is a specific danger to the
applicant.” (citing Fergiste v. INS, 138
F.3d 14, 19 (1st Cir. 1998)); Kaczmarczyk
v. INS, 933 F.2d 588, 593-95 (7th Cir.
1991) (explaining that, though it
appropriately rebutted petitioners’ fear of
future persecution in that case, the BIA
could not use the election of Solidarity
Party members in Poland to reject all
asylum claims by Polish nationals). We
agree with these cases and apply their
precepts to the case before us. The rule is
a natural corollary of the more general
proposition that the IJ is required to
consider the record as a whole in ruling on
an alien’s claim. See, e.g., Tarrawally v.
Ashcroft, 338 F.3d 180, 184 (3d Cir. 2003)
(citing Balasubramanrim, 143 F.3d at
161).
To the extent that the IJ proposed to
proceed on an interpretation of 8 C.F.R. §
208.13(b)(1) that departs from the one
stated by our sister Courts of Appeals, the
IJ offered no reasoning and cited no
autho rity— not even the pertinent
regulation itself. Accordingly, we have no
basis on which to conclude that the IJ’s
reading and application of the regulation
was “reasonable” and therefore entitled to
deference under Chevron U.S.A., Inc. v.
Natural Resources Defense Council, 467
U.S. 837 (1984). Cf., e.g., Valansi v.
Ashcroft, 278 F.3d 203, 208-09 (3d Cir.
2002) (quoting, inter alia, Lewis v. INS,
194 F.3d 539, 544 (4th Cir. 1999) (“If we
conclude that Congress has not directly
addressed the question at issue in a statute
or its intent is ambiguous, we must defer to
the Board’s interpretation of the statute
provided it is not an unreasonable one.”
(internal citations and quotation marks
omitted))).
Subject to our discussion of the
staleness of the country report in the
administrative record here, the IJ’s
reliance on changed country conditions
was only in part supported by substantial
evidence. Substantial evidence does
support the IJ’s conclusion that Berishaj
could no longer have an objectively
reasonable fear of future persecution in the
military—after all, as even the 1997 State
D e p a r t m e n t Co untr y R e p o r t f or
Serbia/Montenegro notes, the war in
Bosnia ended with the 1995 Dayton Peace

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16
Accord, and the Yugoslav parliament had
approved an amnesty for those who had
avoided military service between 1991 and
1995. While there were scattered reports
of forcible conscription, it was clear by
2000 that this was the exception.
On the other hand, nothing in the
country reports, or elsewhere in the record,
rebuts Berishaj’s fear of persecution at the
hands of Montenegrin police authorities.
Berishaj testified that the police had come
to his parents’ home looking for him after
he had left Montenegro, and that his
brother had been put in jail. Berishaj’s
sister corroborated Berishaj’s account of
his parents’ report of the police searches.
The IJ’s extremely general observation
that, in the wake of Milosevic’s
withdrawal of influence over Montenegro,
“the government of Montenegro has
shown signs of self-determination” does
nothing to refute Berishaj’s claims of
police-initiated persecution.4 Similarly
insufficient is the go vern men t’s
observation (not relied on by the IJ, we
note) that ethnic Albanians participate in
the political process in Montenegro and
have won seats in parliamentary elections.
There may be specific reasons to think that
Berishaj’s fear of persecution is no longer
reasonable, but the IJ offers none, and we
will not scour a 700-plus page record (well
over half of which is devoted to
documentary materials) for evidence
unnoticed and unanalyzed by the IJ to
uphold the IJ’s decision. The burden of
proof in a changed-country-conditions
rebuttal is squarely on the government, and
no reasonable factfinder could conclude
that the government has carried its burden
of presenting specific evidence to rebut
Berishaj’s presumed well-founded fear of
future persecution.
In sum, substantial evidence does not
support the IJ’s rejection of Berishaj’s
claim of persecution by Montenegrin
police authorities; we will therefore grant
his petition for review of the IJ’s
disposition of his asylum claim. We do
not hold that Bershaj’s asylum claim must
succeed; it may be that his objective fear
of future persecution is rebutted by
evidence in the record, but we certainly
will not mine the record to invent our own
reasons to reject Berishaj’s application. It
may also be that the events of which
Berishaj complains do not amount to
persecution, but it would be manifestly
inappropriate for us, rather than the
4Berishaj also testified at length about
how he believed the new leader of
Montenegro in 2001, Milo Djukonovic,
to be closely allied with Milosevic, even
though the latter was no longer in power.
The IJ did not address the effects of
Djukonovic’s government on conditions
in Montenegro, and in view of the
limited administrative record and
confused (dare we say Balkanized) state
of political affairs in the region, we are
unable to say whether Berishaj’s
assessment is correct. If anything, the
IJ’s failure to specifically address the
post-M ilosevic political situation in
Montenegro supports granting the
petition for review.

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17
Agency, to undertake that inquiry in the
first instance. See INS v. Ventura, 537
U.S. 12 (2002). Finally—as we discuss in
greater detail infra Part III.B—it may be
that the passage of considerable time since
the original agency disposition will allow
the administrative record to be
supplemented in a way that sheds more
light on Bershaj’s claim for asylum.
B. The Trouble with Stale
Administrative Records
It is a salutary principle of
administrative law review that the
reviewing court act upon a closed record.
This modus procedendi secures to an
administrative agency the necessary
measure of authority and discretion within
its sphere of special competence, by
preventing undue interference by
generalist courts that are charged only with
ensuring procedural regularity in the
agency’s actions. This in turn translates to
long-term stability and predictability in
outcomes in matters within the agency’s
expertise. While the principle yields good
results in most cases, in the area of asylum
law, where claims are heavily dependent
on country conditions, it can become an
albatross. More specifically, the dispute
often centers on the government’s
assertion, based upon a State Department
Country Report, that conditions have so
changed from those represented in the
asylum application that there is no longer
a basis for the alien’s claim of persecution
in the country of proposed removal.
It has become common that those
country reports in the administrative
record are three or four years old by the
time the petition for review comes before
us, and they frequently do not fairly reflect
what our knowledge of world events
suggests is the true state of affairs in the
proposed country of removal, or the region
embracing it. It almost goes without
saying that, in the troubled areas of the
planet from which asylum claims tend to
c o m e , t h e pa c e o f c h a n g e is
rapid—oppressive regimes rise and fall,
and conditions improve and worsen for
vulnerable ethnic, religious, and political
minorities. As a consequence, we become
like astronomers whose telescopes capture
light rays that have taken millions of years
to traverse the cosmos, revealing things as
they once were, but are no longer. But
unlike astronomers, who can only
speculate about what is happening at this
moment in a far-off galaxy, we often know
very well what has happened in the years
since an administrative record was
compiled.
As we have suggested above, the
process-based review of agency actions is,
in theory at least, just that—process-based,
without regard to the merits. That should
make it easier, not harder, to judge long-
cold records. However, in contrast to the
traditional administrative law case, this
type of review can give rise to potentially
devastating consequences to an applicant
who faces the possibility of persecution (or
worse) if he is removed.
This case is a good example of how
much can change in the time between the
creation of the administrative record
before the IJ and the judgment of this

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18
Court. On the one hand, Slobodan
Milosevic is now gone from the region, the
Federal Republic of Yugoslavia no longer
exists, and Berishaj’s native Montenegro is
now within the recently formed loose
federation of Serbia and Montenegro. On
the other hand, Berishaj claims—at least as
of his testimony in early 2001—that the
leaders in power are in practice “mirror
image[s]” of Milosevic. Four-year-old
c o u n t r y r e p o r t s a r e s in g u l a r l y
unenlightening when faced with this kind
of situation.
Specific to Berishaj’s fear of
persecution—we are looking now to the
State Department’s 2003 Country Reports
on Human Rights Practices: Serbia and
Montenegro, released in February 2004,
which we have downloaded from the State
Department’s web site (the “2003 Country
Report”)—we note that police occasionally
beat suspects during arrest and detention,
but there has been generally improved
respect by the police for human rights.
Recently enacted criminal procedure
reforms are aimed toward eliminating
arbitrary arrest and detention, and the
Montenegrin Helsinki Committee (HCM),
a recognized human-rights monitor, did
not record any incidents of arbitrary arrest
or detention during 2003. In the cases
where arrest did not lead to prosecution,
the HCM did not find (in contrast to
previous years) any political, ethnic, or
religious motivation by the police. Ethnic
Albanians participate in the political
p r o c e s s , a n d t h o u g h t h ey a re
proportionately underrepresented, they do
have seats in the Montenegrin Parliament.
Finally, with respect to Berishaj’s troubles
at the illegal university in Kosovo, the
State Department notes that th e
government in Kosovo “did not restrict
access to the Internet or academic
freedom.” But this 2003 Country Report is
not part of the administrative record.
There are some applicants to whom our
concerns simply do not apply— applicants
from countries where conditions have not
changed significantly for the better or
worse in many years. And in other
countries, the flux of world events is too
great to hope for perfect, up-to-date
decisions in every immigration case.
Surely, however, we can do much better
than we are doing now, especially in cases
from volatile c ountries and with
exceptionally stale records. The precise
problem is not just that the administrative
records in so many cases are out-of-date
(though that is a contributing factor), but
concomitantly that we do not have a
r e a so n a b l y r e c e n t f i n a l a g e n c y
determination to review. It is one thing to
supplement the record before us; it is quite
another to decide a case based on this
expanded record.
We are aware that the Court of Appeals
for the Seventh Circuit apparently takes
judicial notice of post-final-agency-
determination developments, in the form
of new country reports, and at times rests
its disposition on those developments.
See, e.g., Pelinkovic v. Ashcroft, 366 F.3d
532, 540-41 (7th Cir. 2004) (taking
judicial notice that country conditions for
ethnic Albanians in Serbia and
Montenegro in 2004 are much-improved
over conditions in the early 1990s). This

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19
practice might go a long way toward
solving the problem we face, but with all
respect we are unable to square this
practice with the clear command from SEC
v. Chenery Corp., 318 U.S. 80 (1943), that
courts reviewing the determination of an
administrative agency must approve or
reject the agency’s action purely on the
basis of the reasons offered by, and the
record compiled before, the agency itself.
Moreover, we are not especially sanguine
about the Seventh Circuit’s relaxed
approach to agency review. It not only
carries with it the potential for wholesale
relitigation of many immigration-law
claims, but the Courts of Appeals are ill-
equipped to receive supplementary
evidence. At all events, the asylum
claimant should have the opportunity to
challenge the updated country report that
the government would rely on.
Congress could, of course, modify the
rules normally applicable to petitions for
review of a final decision of the BIA
without scrapping the strictures of
administrative agency review altogether.
Congress could require the Courts of
Appeals, in their sound discretion, on
motion or sua sponte, to grant petitions for
review of the BIA, and remand when it
appears from judicially noticeable
materials that the record compiled before
the agency does not generally reflect
contemporary country conditions.
Better yet, the parties to these
proceedings might take advantage of the
procedures in 8 U.S.C. § 1229a(c)(6)
(permitting aliens to move to reopen
proceedings on the basis of “new facts”)
and 8 C.F.R. § 1003.2 (permitting an alien
or the government to move the BIA to
reopen proceedings, and authorizing the
BIA to do so sua sponte). Indeed, both the
statute and regulation seem to explicitly
contemplate the situation we comment on
here; they permit reopening of asylum
proceedings “based on changed country
conditions arising in the country of
nationality or the country to which
removal has been ordered.” 8 U.S.C. §
1229a(c)(6)(C)(ii); see also 8 C.F.R. §
1003.2(c)(3)(ii) (permitting reopening
“based on changed circumstances arising
in the country of nationality or in the
country to which deportation has been
ordered”). Counsel for aliens generally
seem to be zealous in pursuing these
motions to reopen when appropriate. But
if this panel had to characterize the posture
of petitions before it for review of the BIA
on an outdated record, we would say that
in the majority, country conditions had
improved, weakening the alien’s case for
relief. Accordingly, we encourage the
Department of Justice to adopt a policy
that encourages its attorneys to file
motions to reopen when the adjudication
of an applicant’s claim would benefit from
an updated administrative record. The
device of the motion to reopen is far from
perfect, though, as it may additionally
delay an already protracted process.
We come at last to the one actor not
directly discussed so far: the BIA. The
trigger for the recent spate of out-of-date
records is, we suspect, the streamlining
regulations noted above, which permit the
BIA to summarily affirm an IJ’s decision
without issuing its own opinion. See 8

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20
C.F.R. § 3.1(e)(4). The natural—though
surely unintended—consequence of the
streamlining regulations is summary
affirmance by the BIA of stale, backlogged
decisions by IJs. When it does so, the BIA
may have shirked its role and duty of
e n s u r in g t h a t th e f inal a g e n cy
determination in an immigration case is
reasonably sound and reasonably current.
The decision here on review is neither, and
it is an embarrassment to the Agency on
multiple levels. The “reasoning” of the IJ
is open to ridicule, as we think our
discussion in Part III.A illustrates; and the
administrative record is a hoary relic: For
example, the most recent country report
was thirty-five months out-of-date at the
time the BIA rendered its decision, and as
of this writing, is fifty-four months out-of-
date.5 Though the en banc Court in Dia
approved the streamlining regulations over
a statutory and Constitutional challenge, it
does not follow that the regulations are not
subject to misuse and even abuse.
Setting aside our perplexity at how the
BIA apparently thought the IJ’s opinion
worthy of being the “final agency
determination,” we do not understand why
the BIA did not intervene to supplement
the record in a weak case, arising out of a
highly volatile and evolving region of the
world. The streamlining regulations exist
to save an overburdened BIA from
unnecessary and redundant tasks. They are
not a license for the BIA to say “not our
problem.” Outdated adm inistrative
records are the BIA’s problem, at least as
things now stand, and the BIA needs to
confront them. We therefore call on the
BIA to adopt—by opinion, regulation, or
otherwise—policies that will avoid the
Court of Appeals having to review
administrative records so out-of-date as to
verge on meaningless.
In view of this discussion, we direct the
Clerk of the Court to send a copy of this
opinion, calling particular attention to this
Part III.B, to the Chair, Ranking Member,
Chief Majority Counsel, and M inority
Counsel of the Senate Committee on the
Judiciary, and the Chair and Ranking
Member of the Subcommittee on
Immigration, Border Security and
Citizenship; to the Chair, Ranking
Member, Chief Majority Counsel, and
Minority Counsel of the House Committee
on the Judiciary, and the Chair and
Ranking Member of the Subcommittee on
Immigration, Border Security, and Claims;
to the Attorney General of the United
States, the Assistant Attorney General for
the Civil D ivision, United States
Department of Justice, and the Deputy
Assistant Attorney General in charge of
5Of course, it is not strictly the
chronological age of the administrative
record that concerns us here; there are
old records that may still reflect
contemporary conditions (as, for
example, in a country that has been ruled
for several decades by the same dictator),
and there are younger records that may
not reflect contemporary conditions (as,
for example, in a country that
experienced a recent coup d’état). But
generally speaking, the chronological age
of the record is a good rough proxy for
how well the record reflects
contemporary conditions.

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

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“Yugoslav forces ha[ve] undertaken
limited ethnic cleansing campaigns
directed against ethnic Albanians in
northern Montenegro.” Similar reports are
scattered throughout the administrative
record.
Ultimately, even if this activity
amounts to torture in some instances, there
is no suggestion that it is nearly frequent
enough to compel the conclusion that
Berishaj himself would more likely than
not suffer torture upon removal to
Montenegro. Thus we must deny the
petition for review of Berishaj’s CAT
claim. We also note that our observations
regarding stale administrative records, see
supra Part III.B, can apply with similar
force to claims for protection under the
CAT, even though in this particular case
the CAT issue is not presented in as stark
a relief as the asylum issue.
V. Conclusion
For the foregoing reasons, we will
grant the petition for review, and vacate
the IJ’s decision with respect to Berishaj’s
asylum claim. Because the IJ’s disposition
of Berishaj’s claim for withholding of
removal rested on the same grounds that
we have found insufficient to support his
rejection of Berishaj’s asylum claim, we
will also grant the petition for review, and
vacate the IJ’s decision, with respect to
Berishaj’s claim for withholding of
removal. See Mulanga, 349 F.3d at 132
(describing relationship between asylum
claims and claims for mandatory
withholding of removal). We will deny
the petition for review with respect to
Berishaj’s claim under the CAT. We
direct the Clerk of the Court to send copies
of this opinion to the officers and
legislators identified in Part III.B above.

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