Elzour v. Ashcroft

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 17 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

MAHMOUD SHEIK ELZOUR,

Petitioner,

v. No. 04-9507

JOHN ASHCROFT, Attorney General,

Respondent.

Petition for Review of a Decision of the
Board of Immigration Appeals
(BIA No. A78-602-705)

William Michael Sharma-Crawford, Overland Park, Kansas, for Petitioner.

John M. McAdams, Jr., United States Department of Justice, Civil Division,
Office of Immigration Litigation, Washington, D.C. (Peter D. Keisler, Assistant
Attorney General, Washington, D.C., and Linda S. Wernery, United States
Department of Justice, Civil Division, Office of Immigration Litigation,
Washington, D.C., with him on the brief) for Respondent.

Before EBEL, HENRY and HARTZ, Circuit Judges.

EBEL, Circuit Judge.

Petitioner Mahmoud Sheik Elzour (“Petitioner”), a Syrian national, entered

the United States without authorization in April 2000. The government now seeks
to remove him from the country. In response, Petitioner claims that he was

subjected to a history of persecution at the hands of Syrian authorities and that he

is entitled to asylum in the United States and/or restriction on removal to Syria.

The Immigration Judge (“IJ”) denied Petitioner’s application for asylum on

the sole ground that Petitioner had firmly resettled in Canada prior to entering this

country. He denied Petitioner’s’s application for restriction on removal because

he found Petitioner’s tale of persecution implausible. The IJ then ordered

Petitioner removed to Canada, or, in the alternative, to Syria. The Board of

Immigration Appeals (“BIA”) affirmed without opinion.

We hold that the IJ’s firm resettlement determination lacks record support,

and that the IJ failed to support his adverse credibility finding with specific,

cogent reasons as required by our precedent. Accordingly, we VACATE the

BIA’s order and REMAND for further proceedings.

BACKGROUND

Petitioner’s account of his alleged persecution in Syria is in dispute. For

background purposes, we first describe the facts asserted by Petitioner in his

testimony and affidavit, then provide a brief overview of conditions in Syria, and

finally recount this case’s procedural history.

-2-
 Petitioner’s Allegations

Petitioner was born and raised in Hamah, Syria. Hamah is closely

associated with the Muslim Brotherhood, a religious-based movement opposed to

the current Syrian regime. Although Petitioner did not favor the Syrian

government, he did not support the Muslim Brotherhood either. However,

Petitioner’s brother Abdul did speak favorably of the Muslim Brotherhood on

occasion, and he once let a Muslim Brotherhood member stay at his house for a

few days.

In June 1981, Petitioner began a 30-month term of obligatory military

service, working as an air traffic controller. In July 1983, he was arrested and

taken to an air force security area. On that same day, his brother Abdul was

arrested in a different location in Syria.

After six or seven days, Petitioner was transferred to an underground cell in

Damascus. He was beaten daily, suffering a broken nose and broken ribs, and a

bright light was kept on at all times. He was interrogated about his knowledge of

the Muslim Brotherhood, asked to identify friends in the Muslim Brotherhood,

and specifically questioned about his brother Abdul’s activities. Petitioner was

released in May 1985. The Syrian government treated the time he spent in

custody as military service and awarded him retroactive compensation.

-3-
 From 1985 to 1990, Petitioner worked with his father selling home

improvement products. In February 1991 he was arrested for a second time. He

was held for several months at a military facility in Hamah, where he was

questioned about giving money to his brother’s wife. Petitioner testified that he

wanted to support her while his brother was in prison, but that his behavior was

perceived by Syrian authorities as raising money for families of the Muslim

Brotherhood. He was beaten daily, and his injuries included eye injuries, a

broken nose, a broken arm, and broken ribs.

In September 1991, Petitioner was transferred to Sidna (or Seydnaya)

Prison, where he was held in a single room with more than 100 detainees.

Conditions were poor. At some point, he was notified that he had been tried in

absentia by a military court and sentenced to life in prison, although he was not

informed of the charge against him. In December 1995, Petitioner was released

as part of a general amnesty given to about 2,500 political prisoners.

After his release, Petitioner stayed at his father’s home for five or six

months and had two operations on his injured eye. In June 1996, he used his

brother’s passport to leave Syria for the Czech Republic. He soon obtained a

false Swedish passport and headed to Canada.

Within days of his arrival in Canada in June 1996, Petitioner applied for

asylum. Canadian authorities sent him notices to appear regarding his asylum

-4-
claim in February and April 1998, but Petitioner did not receive them and he

therefore failed to attend a mandatory hearing. Consequently, Canada deemed his

asylum claim abandoned and apparently ordered Petitioner to be deported to

Syria. 1

Petitioner was unaware of these developments at the time, and he thought

that his application was simply taking a long time to be processed. Meanwhile, in

January 1998, Petitioner married a Canadian woman, and they had a daughter later

that year. Petitioner had also obtained authorization to accept employment in

Canada, and he took a job as a carpenter.

In June 1999, believing that Canada had still not acted on his asylum

request, Petitioner’s wife filed a spousal application on his behalf. Canadian

officials denied the application on the ground that the marriage had not been

entered into in good faith.

In late 1999 or early 2000, Petitioner learned that his asylum application

had been deemed abandoned. Fearing deportation, he fled for the United States

on April 25, 2000. 2

Our record does not contain a copy of the Canadian deportation order.
1

However, in its brief to this Court the government relates that “Elzour missed his
Canadian asylum hearing and was ordered deported to Syria.”
2
Unbeknownst to Petitioner, Canadian officials decided to reopen his
asylum case about the time he left the country. However, Canadian authorities
ultimately determined that Petitioner had again abandoned his asylum claim,
(continued...)

-5-
 Country Conditions

The administrative record contains the State Department’s 1999 Country

Report on Human Rights Practices for Syria, which describes a pattern of human

rights abuses in Syria. That report generally depicted a regime that tolerated no

organized political opposition.

In particular, the report noted that “[a]rbitrary arrest and detention are

problems.” In cases involving security matters, suspects could be detained

incommunicado for prolonged periods without being tried or charged. The

government also commonly detained relatives of detainees or fugitives. Further,

Syria’s security services were known to commit torture and other human rights

abuses, particularly in military detention centers. “Serious abuses include[d]

reports of extrajudicial killings; the widespread use of torture in detention; poor

prison conditions; arbitrary arrest and detention; [and] prolonged detention

without trial.”

Other human rights reports in the administrative record show that a

significant percentage of Syria’s political detainees had been arrested for known

or suspected affiliation with the Muslim Brotherhood. A 1992 Human Rights

Watch report stated that about 75 percent of the political detainees at that time

2
(...continued)
having failed to appear at a hearing in February 2001.

-6-
were suspected of having an affiliation with the Muslim Brotherhood. Another

Human Rights Watch report, discussing Tadmor Prison, 3 noted that “[a]mong

those arbitrarily arrested ... in the early 1980s were large numbers of young men,

including teenagers, who were relatives, friends or acquaintances of suspected or

known Muslim Brothers, or individuals whose names were elicited when suspects

were tortured during interrogation.” 4

Procedural History

Before the IJ, Petitioner admitted that he entered the United States without

inspection, but applied for asylum pursuant to 8 U.S.C. § 1158 and restriction on

removal pursuant to 8 U.S.C. § 1231 and the Convention Against Torture. The IJ

denied his application for asylum on the ground that Petitioner had firmly

resettled in Canada before entering the United States, noting that he had been

given the right to work and to apply for asylum there.

3
Petitioner does not allege that he was held in Tadmor Prison.
4
In the late 1970s and early 1980s, terrorist groups associated with a
faction of the Muslim Brotherhood were involved in numerous assassinations of
Syrian government officials. The Muslim Brotherhood also staged an uprising
against the Syrian government in Hamah in February 1982.

-7-
 Next, the IJ denied his application for restriction on removal because he

found that Petitioner was not a credible witness. 5 The IJ’s adverse credibility

finding was based solely on his conclusion that Petitioner’s story was implausible.

More specifically, the IJ found the following aspects of Petitioner’s story

unworthy of belief: (1) that Syria would arrest a member of the military in the

manner Petitioner described; (2) that Syria would be interested in Petitioner more

than a year after the 1982 Hamah uprising; (3) that Syria would arrest Petitioner

even though neither he nor his brother were supporters of the Muslim

Brotherhood; (4) that Petitioner was detained arbitrarily for the length of time he

claims; and (5) that Petitioner was compensated by the Syrian military after his

first release from prison. The IJ did not rely on Petitioner’s demeanor but rather

simply referred to the above factors to support his conclusion that parts of

Petitioner’s story were implausible.

The IJ ordered Petitioner removed to Canada (or, if Canada refused to

accept him or advise whether it would accept him within 90 days, then to Syria).

5
Restriction on removal was known as “withholding of removal” prior to
the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. See
Wiransane v. Ashcroft, 366 F.3d 889, 892 n.1 (10th Cir. 2004). We use the newer
terminology “restriction on removal” throughout this opinion. For simplicity, as
the IJ denied Petitioner’s applications under 8 U.S.C. § 1231 and the Convention
Against Torture on the same ground, we will refer to these two potential bases for
relief collectively as Petitioner’s application for restriction on removal.

-8-
The BIA affirmed without opinion. We have jurisdiction to review the final

removal order pursuant to 8 U.S.C. § 1252(a).

DISCUSSION

I. Introduction

An alien who fears persecution if removed from the United States has two

possible avenues of relief: asylum and restriction on removal. See Tsevegmid v.

Ashcroft, 336 F.3d 1231, 1234 (10th Cir. 2003). Asylum generally permits the

alien to remain in the United States, whereas restriction on removal forbids

removal to the country where persecution is likely to occur. See id.; Wiransane v.

Ashcroft, 366 F.3d 889, 893 (10th Cir. 2004).

A. Asylum

“An alien who has been granted asylum may not be deported or removed

unless his or her asylum status is terminated.” 8 C.F.R. § 208.22. To be eligible

for asylum, an alien must be a “refugee,” meaning that he or she must generally

be outside his or her country of nationality and “unable or unwilling to return to

... that country because of persecution or a well-founded fear of persecution on

account of race, religion, nationality, membership in a particular social group or

-9-
political opinion.” 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1). 6 As a general matter,

once refugee status is established, whether to grant or deny an asylum application

is within the discretion of the Attorney General. INS v. Cardoza-Fonseca, 480

U.S. 421, 428 n.5 (1987) (“[T]he Attorney General is not required to grant asylum

to everyone who meets the definition of refugee.”) (emphasis in original).

However, some categories of aliens are, by statute, ineligible to receive

asylum even if they fall within the definition of a refugee. As relevant to our

case, asylum is not available if the alien was firmly resettled in another country

prior to arriving in the United States. 8 U.S.C. § 1158(b)(2)(A)(vi). Applicable

regulations explain that, with exceptions not relevant in the instant case, an alien

is considered to be firmly resettled in a third country when “prior to arrival in the

United States, he or she entered into another country with, or while in that

country received, an offer of permanent resident status, citizenship, or some other

type of permanent resettlement.” 8 C.F.R. § 208.15. 7

6
Other circuits have held that persecution on account of political opinion
can include persecution based on imputed political opinion. See Ravindran v.
INS, 976 F.2d 754, 760 (1st Cir. 1992) (“An imputed political opinion, whether
correctly or incorrectly attributed, may constitute a reason for political
persecution within the meaning of the Act.”); Aguilera-Cota v. INS, 914 F.2d
1375, 1379 (9th Cir. 1990) (“If the persecutor thinks the person guilty of a
political opinion, then the person is at risk.”) (quotation omitted).
7
An alien will not be considered “firmly resettled,” even upon receiving
some sort of offer of permanent resettlement, if he or she establishes (1) that the
alien’s entry into the third country was a necessary consequence of his or her
(continued...)

- 10 -
 B. Restriction on Removal under 8 U.S.C. § 1231

Generally speaking, an alien may not be removed to a particular country if

he or she can establish a clear probability of persecution in that country on the

basis of race, religion, nationality, membership in a particular social group, or

political opinion. See 8 U.S.C. § 1231(b)(3)(A); INS v. Stevic, 467 U.S. 407,

429-30 (1984); Woldemeskel v. INS, 257 F.3d 1185, 1193 (10th Cir. 2001). This

test requires the alien to show that such persecution is more likely than not.

Stevic, 467 U.S. at 429-30; Woldemeskel, 257 F.3d at 1193. It is therefore “more

demanding than the ‘well-founded fear’ standard applicable to an asylum claim.”

Tsevegmid, 336 F.3d at 1234.

The statutory provision governing restriction on removal also contains a

different set of exceptions than does the asylum statute. Significantly, firm

resettlement in a third country is not a bar to restriction on removal to the country

where persecution is likely. See 8 U.S.C. § 1231(b)(3)(B); Salazar v. Ashcroft,

359 F.3d 45, 52 (1st Cir. 2004) (“Although firm resettlement is ... a bar to the

grant of asylum, we have found no statute or regulation that bars the relief of

withholding of [removal] on the basis of firm resettlement.”). Additionally,

7
(...continued)
flight from persecution, the alien stayed there only so long as necessary to arrange
onward travel, and he or she established no significant ties there, or (2) that the
conditions in the third country were so substantially and consciously restricted
that the alien was not in fact resettled there. See 8 C.F.R. § 208.15.

- 11 -
unlike asylum, the decision to grant restriction on removal is mandatory once the

statutory criteria are satisfied. Woldemeskel, 257 F.3d at 1193.

C. Convention Against Torture

The Convention Against Torture provides another basis for restricting

removal to a particular country. 8 Pursuant to this treaty, an alien is entitled not to

be removed to a country if he or she can show that it is more likely than not that

he or she would be tortured if removed to that country. 8 C.F.R. §§ 208.16(c)(2),

(4). This protection is narrower than restriction on removal under 8 U.S.C.

§ 1231 in some respects, but broader in others. See Kamalthas v. INS, 251 F.3d

1279, 1283 (9th Cir. 2001). The alien must show that the persecution at issue

would be so severe as to rise to the level of torture, but he or she need not show

that it would be on account of a protected classification. See id.

D. Principles of Judicial Review

Because the BIA summarily affirmed the IJ’s decision without opinion, we

review the IJ’s order as the final agency determination. Sviridov v. Ashcroft, 358

8
The Convention Against Torture is formally referred to as The United
Nations Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85. The United States
implemented the Convention Against Torture through the Foreign Affairs Reform
and Restructuring Act of 1998, Pub. L. No. 105-277, § 2242, 112 Stat. 2681
(1998). See Batalova v. Ashcroft, 355 F.3d 1246, 1248 n.2 (10th Cir. 2004).

- 12 -
F.3d 722, 727 (10th Cir. 2004). We consider any legal questions de novo, and we

review the agency’s findings of fact under the substantial evidence standard.

Under that test, our duty is to guarantee that factual determinations are supported

by reasonable, substantial and probative evidence considering the record as a

whole. See id.; Kapcia v. INS, 944 F.2d 702, 705 (10th Cir. 1991). 9

The IJ’s credibility determinations, like other findings of fact, are subject

to the substantial evidence test. See Cordero-Trejo v. INS, 40 F.3d 482, 487 (1st

Cir. 1994); Abdulrahman v. Ashcroft, 330 F.3d 587, 597 (3d Cir. 2003); Osorio v.

INS, 99 F.3d 928, 931 (9th Cir. 1996). In particular, we have held that in order to

determine that an alien is not a credible witness, the IJ must give “specific, cogent

reasons” for disbelieving his or her testimony. Sviridov, 358 F.3d at 727.

9
Desta v. Ashcroft, 329 F.3d 1179, 1181, 1187 (10th Cir. 2003), suggests
that we review the firm resettlement question for abuse of discretion. Most other
circuits review this question for substantial evidence. See Salazar, 359 F.3d at 50
(1st Cir.); Abdille v. Ashcroft, 242 F.3d 477, 483 (3d Cir. 2001); Mussie v. INS,
172 F.3d 329, 331 (4th Cir. 1999). The cases we cited in Desta referred to the
Attorney General’s discretionary power to grant asylum relief, not to mandatory
statutory bars such as firm resettlement. See Kapcia, 944 F.2d at 708;
Woldemeskel, 257 F.3d at 1189. Moreover, both before and after Desta, we have
held generally (albeit outside the firm resettlement context) that we review IJ and
BIA factfinding for substantial evidence. See, e.g., Sviridov, 358 F.3d at 727;
Lockett v. INS, 245 F.3d 1126, 1128 (10th Cir. 2001). In any event, in this case
our conclusion is unaffected by the standard of review. Committing a legal error
or making a factual finding that is not supported by substantial record evidence is
necessarily an abuse of discretion.

- 13 -
 Finally, our review is confined to the reasoning given by the IJ, and we will

not independently search the record for alternative bases to affirm. See SEC v.

Chenery Corp., 318 U.S. 80, 95 (1943); Secaida-Rosales v. INS, 331 F.3d 297,

305 (2d Cir. 2003). If an agency “decides a case on a ground believed by an

appellate court to be wrong, the case has to be remanded to the agency.” See

Palavra v. INS, 287 F.3d 690, 693 (8th Cir. 2002). Thus, in the instant case, our

review of Petitioner’s asylum application is limited to the IJ’s firm resettlement

determination, and our review of his restriction of removal application is limited

to whether the IJ’s adverse credibility determination is sustainable.

II. Firm Resettlement

The firm resettlement bar generally mandates a denial of asylum if a third

country in which an alien has resided offers him or her permanent resettlement

before the alien enters the United States. See Andriasian v. INS, 180 F.3d 1033,

1043 (9th Cir. 1999). 8 C.F.R. § 208.15 “explicitly centers the firm resettlement

analysis on the question whether a third country issued to the alien an offer of

some type of official status permitting the alien to reside in that country on a

permanent basis.” Abdille v. Ashcroft, 242 F.3d 477, 485 (3d Cir. 2001). If a

third country has simply allowed the alien to reside there temporarily, the firm

resettlement bar does not apply. See Cheo v. INS, 162 F.3d 1227, 1230 (9th Cir.

- 14 -
1998) (“This does not mean that as soon as a person has come to rest at a country

other than the country of danger, he cannot get asylum in the United States.

Another country may have allowed only a temporary and not a permanent

refuge.”).

We have recognized that an offer of permanent resettlement may be proven

by either direct or circumstantial evidence. See Abdalla v. INS, 43 F.3d 1397,

1399-1400 (10th Cir. 1994). Specifically, when an alien enjoys a lengthy

undisturbed stay in a third country, “in the absence of evidence to the contrary, it

would be a reasonable inference from the duration that [the third country] allowed

the [alien] to stay indefinitely.” See Cheo, 162 F.3d at 1229; see also Abdille,

242 F.3d at 487 (“[I]f direct evidence of an offer is unobtainable, such non-offer-

based elements can serve as a surrogate for direct evidence of a formal offer of

some type of permanent resettlement, if they rise to a sufficient level of clarity

and force.”). In Abdalla, for example, evidence that an alien lived for 20 years in

the United Arab Emirates and possessed a “‘residence’ visa/permit” was sufficient

to suggest permanent resettlement in the absence of contrary evidence. 43 F.3d at

1399; see also Cheo, 162 F.3d at 1229 (“Three years of peaceful residence ... [is]

- 15 -
sufficient to support an inference of permanent resettlement in the absence of

evidence to the contrary.”). 10

However, in this case, Petitioner’s stay of nearly four years in Canada does

not support an inference that he had received some sort of permanent refuge there.

On the contrary, the record contains undisputed evidence that Canada both

refused to grant Petitioner asylum and refused to grant him permanent status

based on his marriage to a Canadian national. Instead, Canada ordered Petitioner

deported to Syria. These facts negate any inference that could otherwise be

drawn from the length of Petitioner’s stay in Canada that he had found permanent

refuge there. Cf. Abdalla, 43 F.3d at 1399 (inferring firm resettlement from an

“extended, officially sanctioned stay”); Cheo, 162 F.3d at 1229 (inferring firm

resettlement from a “three year undisturbed stay”); Andriasian, 180 F.3d at 1043

(finding no firm resettlement because “[t]here is no evidence in the record that

[petitioner] was offered resettlement by Armenia – quite the opposite; he was told

to go back to Azerbaijan”).

There remains the question of whether Petitioner’s ability to apply for

asylum in Canada was itself an “offer of ... permanent resettlement” which

Petitioner declined by failing to appear at a mandatory hearing. The firm

10
Once the government presents evidence indicating the alien was firmly
resettled, the burden shifts to the alien to show that this mandatory bar does not
apply. See Abdalla, 43 F.3d at 1399; Abdille, 242 F.3d at 491, 491 n.12.

- 16 -
resettlement bar looks to whether permanent refuge was offered, not whether

permanent status was ultimately obtained. Refugees may not flee to the United

States and receive asylum after having unilaterally rejected safe haven in other

nations in which they established significant ties along the way. See 8 C.F.R. §

208.15; Abdalla, 43 F.3d at 1400 (an alien may not “bootstrap[] an asylum claim

simply by unilaterally severing his existing ties to a third country”); Cheo, 162

F.3d at 1230 (“A persecuting regime does not entitle its victims to choose one

country of asylum over another which first afforded permanent refuge.”).

An offer of permanent resettlement need not come in any particular form,

and a third country may generally define what an alien must do in order to accept

its offer. As relevant here, a third country’s offer of permanent resettlement may

consist of providing a defined class of aliens a process through which they are

entitled to claim permanent refuge. If an alien who is entitled to permanent

refuge in another country turns his or her back on that country’s offer by failing

to take advantage of its procedures for obtaining relief, he or she is not generally

eligible for asylum in the United States. In contrast, a mere possibility that an

alien might receive permanent refuge through a third country’s asylum procedures

is not enough to constitute an offer of permanent resettlement.

- 17 -
 In the instant case, the IJ based his decision that Petitioner was firmly

resettled in Canada exclusively on two grounds: (1) Petitioner was given the right

to work in Canada, and (2) he was given the opportunity to apply for asylum

there. Yet the fact that Petitioner was allowed to work in Canada does not mean

that Canada offered him “permanent resident status, citizenship, or some other

type of permanent resettlement.” Cf. 8 C.F.R. § 208.15. Further, although the IJ

noted that Petitioner had the right to apply for asylum in Canada, he did not

examine whether that right constituted an offer of permanent resettlement.

We hold that the IJ’s reasons for finding Petitioner subject to the firm

resettlement bar are inadequate, and we remand for further consideration of this

issue in light of the guidance provided in this opinion.

III. Credibility

As noted above, the IJ refused to restrict removal to Syria because he found

Petitioner’s account of persecution there implausible. 11 We will uphold an IJ’s

adverse credibility determination so long as the IJ provides “specific, cogent

reasons” for disbelieving the witness’ testimony. Sviridov v. Ashcroft, 358 F.3d

722, 727 (10th Cir. 2004). This standard of review is a deferential one, but we do

11
The burden of proof is on the applicant to show eligibility for restriction
on removal, although his or her testimony alone, if credible, may be enough to
satisfy this burden. See 8 C.F.R. §§ 208.16(b), 208.16(c)(2).

- 18 -
not blindly accept an IJ’s determination that an alien seeking asylum or restriction

on removal is not credible. Osorio v. INS, 99 F.3d 928, 931 (9th Cir. 1996); see

also Aguilera-Cota v. INS, 914 F.2d 1375, 1381 (9th Cir. 1990) (“The fact that an

IJ considers a petitioner not to be credible constitutes the beginning not the end of

our inquiry.”).

An IJ’s adverse credibility determination may appropriately be based upon

such factors as inconsistencies in the witness’ testimony, lack of sufficient detail,

or implausibility. See Capric v. Ashcroft, 355 F.3d 1075, 1085 (7th Cir. 2004);

Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003) (en banc). Additionally, an IJ

may find a witness not to be credible because of his or her testimonial demeanor.

See Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 662 (9th Cir. 2003) (“[W]e

grant special deference to the IJ’s eyewitness observations regarding demeanor

evidence.”) In our case, the IJ did not fault Petitioner’s testimony for containing

inconsistencies or lacking detail, nor did he make any findings regarding

Petitioner’s demeanor. Rather, the IJ’s adverse credibility finding was based

solely on his conclusion that Petitioner’s account of persecution was implausible.

An IJ’s finding that an applicant’s testimony is implausible may not be

based upon speculation, conjecture, or unsupported personal opinion. See

Wiransane v. Ashcroft, 366 F.3d 889, 898 (10th Cir. 2004) (“Adverse credibility

determinations based on speculation or conjecture are reversible.”) (quotation and

- 19 -
alterations omitted); see also Vera-Villegas v. INS, 330 F.3d 1222, 1231 (9th Cir.

2003) (“[C]onjecture is not a substitute for substantial evidence.”) (quotation

omitted). Accordingly, when an IJ finds that the alleged behavior of a foreign

government is implausible, that conclusion must be supported by substantial

evidence in the record. See 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

general country conditions.”); El Moraghy v. Ashcroft, 331 F.3d 195, 205 (1st

Cir. 2003) (“While we defer to the IJ on credibility questions, that deference is

expressly conditioned on support in the record.”). Under such circumstances, it

would be error for the IJ to fail to explain the basis in evidence for his or her

credibility finding. See El Moraghy, 331 F.3d at 205 (quoted with approval in

Wiransane, 366 F.3d at 898).

In other words, the IJ may not rest an adverse credibility determination on

“his own unsupported opinion as to how an authoritarian government operates.”

Gao v. Ashcroft, 299 F.3d 266, 278 (3d Cir. 2002); see also Cordero-Trejo v. INS,

40 F.3d 482, 490 (1st Cir. 1994) (implausibility finding may not be “based upon

‘expectations’ without support in the record”); Abdulrahman v. Ashcroft, 330

F.3d 587, 598 (3d Cir. 2003) (“[T]he IJ fell well short of what we are entitled to

expect from judicial officers – her commentary was not confined to the evidence

- 20 -
in the record and smacked of impermissible conjecture”); Mosa v. Rogers, 89

F.3d 601, 604-05 (9th Cir. 1996) (holding that the IJ improperly surmised,

without record support, that the Afghan army would not be so desperate as to

parachute a suspected mujahidin sympathizer into mujahidin territory after only

one week of training) (superceded by statute on other grounds).

Although the IJ in the instant case identified several parts of Petitioner’s

testimony that he found implausible, he failed to substantiate his skepticism with

any record support. The IJ found it “impossible to believe” that Syria would

detain Petitioner for such a prolonged period of time, particularly when neither he

nor his brother supported the Muslim Brotherhood financially, in writing, or in

person. However, uncontradicted materials in the administrative record indicate

that lengthy arbitrary detention was problematic in Syria, and that suspected

Muslim Brotherhood members and their relatives were among those likely to be

detained. The IJ did not explain by reference to anything in the record how these

aspects of Petitioner’s story were implausible.

Along similar lines, the IJ pointed to no record support for his conclusions

that Syria would not arrest and detain a “military man” in such a manner, that any

interest Syria might have had in Petitioner due to the 1982 Hamah uprising would

have subsided by July 1983, and that Syria would not have compensated

Petitioner after his first release from prison in 1985. These conclusions were

- 21 -
based not on any record evidence, but rather on the IJ’s own expectations as to

how the Syrian government operated. We hold that the IJ’s reasoning fell short of

his obligation to “provide a foundation for his disbelief of [Petitioner’s]

testimony on these points.” Cf. Gao, 299 F.3d at 278.

Our decision is a limited one. The question we face is not whether we

share the IJ’s skepticism about particular aspects of Petitioner’s story, but only

whether the IJ adequately supported his adverse credibility determination with

specific, cogent reasons. That requirement demands that there be record support

for a finding that Syria’s alleged behavior was implausible in light of prevailing

country conditions. The IJ provided no such record support in this case, and we

therefore remand for further consideration of this issue.

We emphasize that “we are not finding [Petitioner] credible. Rather, we

are concluding ... that because of the lack of substantial evidence to support the

adverse credibility determination, we will remand in order for the agency to

further explain or supplement the record.” Cf. Dia, 353 F.3d at 260; INS v.

Ventura, 537 U.S. 12, 16 (2002) (“[T]he law entrusts the agency to make the ...

decision here in question. In such circumstances a judicial judgment cannot be

made to do service for an administrative judgment.”) (citations omitted).

- 22 -
 IV. Conclusion

For the foregoing reasons, we GRANT the petition for review, VACATE

the decision of the BIA summarily affirming the IJ’s order, and REMAND to the

BIA for further proceedings consistent with this opinion.

- 23 -