Yusupov v. Attorney General of United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

_____________

No. 09-3032
_____________

BEKHZOD BAKHTIYAROVICH YUSUPOV,
a/k/a Bekhzod Yusupov,
Petitioner
v.

ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
_____________

No. 09-3074
_____________

ISMOIL SAMADOV,
Petitioner
v.

ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
__________

On Petition for Review of an Order
of the Board of Immigration Appeals
(Nos. A 079-729-905, A 079-729-711)
Immigration Judges: Hon. Walter A. Durling (Yusupov)
Hon. Grace A. Sease (Samadov)
________

Argued December 14, 2010

Before: SLOVITER, GREENAWAY, JR., and
STAPLETON, Circuit Judges
 (Filed: June 16, 2011)
______

Lawrence H. Rudnick (Argued)
Steel, Rudnick & Ruben
Philadelphia, PA l9l03

Attorney for Petitioner Bekhzod Yusupov

Baher A. Azmy (Argued)
Anjana Malhotra
Seton Hall Law School
Newark, NJ 07102

Attorneys for Petitioner Ismoil Samadov

Eric H. Holder, Jr.
Thomas W. Hussey
Lyle D. Jentzer (Argued)
John M. McAdams, Jr.
United States Department of Justice
Office of Immigration Litigation
Washington, DC 20044

Attorneys for Respondents

Naureen Shah
Columbia University School of Law
New York, NY 10027

Robin L. Alperstein
Becker, Glynn, Melamed & Muffly
New York, NY 10171

Carl J. Micarelli
Debevoise & Plimpton
New York, NY 10022

Attorneys Amicus Curiae

______
2
 OPINION OF THE COURT
______

SLOVITER, Circuit Judge.

A federal statute, Immigration and Nationality Act
(―INA‖) § 241(b)(3)(B)(iv), 8 U.S.C. § 1231(b)(3)(B)(iv),
precludes withholding of removal if ―there are reasonable
grounds to believe that the alien is a danger to the security of
the United States.‖ In November 2003, the Government of
Uzbekistan requested the extradition of, inter alia, Petitioners
Bekhzod Yusupov and Ismoil Samadov (collectively
―Petitioners‖), asserting they participated with others in a
movement seeking the ―forced overthrow‖ of the Republic of
Uzbekistan, and the establishment on its territory of a
―religious extremist Islamic fundamental state.‖ Y.App. at
705, S.App. at 2993.1 After hearing testimony that it was
merely pretext for persecution, both Immigration Judges
(―IJs‖) concluded that the extradition request would be given
no weight, ―coming from a government such as this with a
history of engaging in persecution and using torture as a
sovereign tool.‖ In Re Yusupov, No. A 79-729-905, at 10 (IJ
Dec. Nov. 19, 2004). In addition, Uzbekistan stimulated
Interpol notices seeking assistance in locating Petitioners.
The Government now asserts that there are reasonable
grounds to believe both Petitioners are a danger to the
security of the United States.

These consolidated cases were previously before this
court. In Yusupov v. Att’y Gen., 518 F.3d 185, 201 (3d Cir.
2008) (―Yusupov I‖), this court overruled the Attorney
General‘s construction of the national security exception that
required merely that a person ―may‖ pose a danger to our
security and held that the provision only applies to an

1
Each Petitioner filed a separate Appendix. We refer
to that filed by Yusupov as ―Y.App.‖ and filed by
Samadov as ―S.App.‖ The appendix located at the back of
Yusupov‘s opening brief will be referred to as
―Y.Br.App.‖
3
individual who actually ―is‖ a danger. Because the Board of
Immigration Appeals (―BIA‖) evaluated Petitioners‘ cases
under the incorrect standard, this court remanded to the BIA
without passing on the merits. On remand, the BIA found
that Petitioners are a danger to national security and are thus
ineligible for withholding of removal. The BIA, however,
granted the Petitioners deferral of removal under the United
Nations Convention Against Torture (―CAT‖) finding it more
likely than not that Petitioners would be persecuted and
tortured on account of their religion and political opinion if
returned to Uzbekistan. We are now called on to consider
whether substantial evidence supports the BIA‘s
determination that Petitioners pose an actual, present danger
to the security of the United States.2

I.

Background

A. Factual Overview

Yusupov and Samadov are two nationals of
Uzbekistan who claim to be Independent Muslims and
followers of Imam Obidkhon Nazarov. Nazarov and his
followers have been subject to persecution since the early
1990s by the Uzbek Government, known for its silencing of
dissent and its ―very poor‖ human rights track record, charges
also maintained by the U.S. Government. S.App. at 2170-73,
Y.App. at 108. Petitioners left Uzbekistan in 1999, allegedly
to pursue educational opportunities in the United States, and
are now unwilling to return for fear of persecution.

Yusupov and Samadov both testified at their respective
initial hearings that they had only peacefully attended their
mosques in their homeland and had engaged in no violent or

2
This court expresses its gratitude to Amici Curiae –
Columbia Law School‘s Human Rights Institute; the
Asian American Legal Defense and Education Fund et. al.
(―AALDEF‖) and Immigration Law Scholars – for their
submissions.
4
subversive activity. Both reported that in 2001, after they
were in the United States, a former roommate, surname
Oripjanov, was tortured and interrogated in Uzbekistan and
forced to sign false allegations against them. This, they
testified, precipitated Uzbekistan‘s issuance of the extradition
requests and Interpol warrants charging them with
participating in activities in support of an illegal, religious,
extremist movement. The IJ presiding at Yusupov‘s hearing
concluded that ―after listening closely to his testimony, and
examining the voluminous evidence of record, [he] found
respondent to have testified credibly.‖ In re Yusupov, No. A
79-729-905, at 9 (IJ Dec. Nov. 19, 2004). After hearing this
testimony, Samadov‘s IJ similarly concluded as follows:

The Court has carefully reviewed that
extradition request. It does not charge
the respondent with any specific
incident. . . . It appears that the
respondent is being sought by the
government of Uzbekistan because of his
religious beliefs.

Based upon the documentary
evidence that has been provided in this
case, the reports of the State Department,
about the religious Freedom Report and
the Human Rights Report, the report
from Human Rights Watch, the other
corroborating evidence, the Court finds
that the respondent‘s testimony when
placed against this evidence is extremely
credible.

S.App. at 46.

Neither of these findings regarding the credibility of
Petitioners has subsequently been withdrawn by the IJ or
found by the BIA to be clearly erroneous.3 Indeed, the BIA

3
As noted hereafter, see infra text at 8, Samadov‘s IJ
found some of his testimony at a subsequent hearing to be
5
on review, expressly found ―no clear error in [Yusupov‘s]
Immigration Judge‘s credibility determination regarding . . .
the Uzbek extradition request and INTERPOL warrant.‖ In
Re Yusupov, No. 79-729-905, at 3 (BIA Dec. June 18, 2009).

Meanwhile, in 2002, after receiving notice of criminal
charges against Petitioners in Uzbekistan, the United States
initiated an investigation during which Petitioners consented
to a search of their shared home and computer. The search
revealed cached video clips of Osama bin Laden and an
alleged Chechen militant and what appear to be attacks on
Russian troops and vehicles, a map of Pennsylvania State
Police facilities, and an email addressed to Petitioners‘ former
roommate, Erkinjon Zakirov, also an Uzbek national, that
references ―jihad.‖4 See Yusupov I, 518 F.3d at 190-92.

―not credible.‖ However, this testimony related solely to
Samadov‘s residence and activities after coming to this
country. She did not retreat from her prior findings
regarding the extradition request, the warrant, and
Samadov‘s activities abroad. S.App. at 23-28. To the
contrary, at this subsequent stage, the IJ relied upon the
same ―documentary evidence‖ regarding Uzbekistan‘s
treatment of Independent Muslims in support of her
conclusion that Samadov would be tortured upon his
return to his home country.
4
The email reads:

In the name of God.
Peace upon you.
Abu Ismoil, my brother

In my letter to PAHKAN I asked him questions
you wanted me to.
1- It is a possibility for You in particular and
Otabek to get out from there, but it will require
from us a lot of enormous amount of hard work
with lots of difficulties. Therefore, if you can,
please stay there, you will be serving Islam a
6
 The Government initiated removal proceedings against
Petitioners. Petitioners conceded removability and applied
for asylum, withholding of removal, and CAT relief.

In March 2004, IJ Grace A. Sease granted Samadov‘s
application for withholding of removal under the INA.5
S.App. at 46. The BIA affirmed. Later that year, the
Government moved to reopen Samadov‘s case on the ground

big favor, your stay there will be a great jihad in
the name of God.
2- [PAKHAN] said that Abdu Wali Qorakan‘s
classes on how to bring the Muslim religion
into Uzbekistan will happen. You will be
meeting him and taking instructions directly
from him.
3- Regarding the boy you mentioned. (The idea
is good to save the boy from the [National
Security Council of Uzbekistan] but this
requires a large amount of money, [PAKHAN]
suggested not to pay the money before the boy
is out, otherwise the prices will keep going up
and all will be wasted.

Ask for patience from God. Be patient, you are
on a great path, the jihad in the name of God.
DO NOT FORGET TO GET MARRIED!!!
Please hurry!!! All will be fine, with God‘s
blessing!!
God will keep you safe.
As you see, we have many difficulties.
Sincerely yours, brother:
Abu Ibroiym

S.App. at 1073.
5
See INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A)
(statutory withholding of removal); 8 C.F.R. § 1208.16(c)
(withholding of removal under the Convention Against
Torture).

7
that it had obtained new, previously unavailable evidence,
namely the files extracted from the shared computer, that
supported a finding that he was a danger to the security of the
United States.6

At the reopened hearing, the Government presented
testimony only of Mark Olexa, an agent of the Department of
Homeland Security (―DHS‖) Joint Terrorism Task Force
working out of Philadelphia, Pennsylvania. Agent Olexa was
unable to translate the non-English writing superimposed on
one of the videoclips or provide additional detail regarding
the contents of several of the videos due to his lack of
familiarity with the language.7 S.App. at 393-414. Olexa
never interviewed Samadov about the materials or other
evidence, and did not identify who had downloaded the files
to the shared computer. He based his opinion that Samadov
had engaged in ―extremist activity‖ primarily on the
allegations in the extradition request. S.App. at 408. After
the hearing, IJ Sease found Samadov‘s testimony regarding
the computer and his activities in this country to be ―not
credible.‖ Although the IJ held that he was ineligible for
withholding of removal as a danger to national security, she
found Samadov eligible for deferral under the CAT. In re
Samadov, A 79-729-711, at 14-15 (IJ Dec. Aug. 2, 2005). In
May 2006, the BIA affirmed.

In November 2004, in separate proceedings, IJ Walter
A. Durling, who was presiding at Yusupov‘s hearing, found
him to be credible and held that there were not reasonable

6
The FBI seized the computer in June 2002, but the
Government took almost two years to fully sort and
translate the materials. Because Yusupov‘s hearing was
held after that of Samadov‘s first hearing, the computer
materials were presented to the immigration court in
Yusupov‘s case in the first instance.
7
In presenting his testimony, he relied on information
provided by ―someone familiar with the Russian
language‖ and other FBI agents. S.App. at 402.

8
grounds to believe he is a danger to national security. The IJ
granted Yusupov‘s applications for withholding of removal
and CAT relief.8 The IJ found it significant that the
Government ―did not produce any writing or correspondence
pertaining to [Yusupov] that suggests any violent intentions
or proclivities, nor has [it] suggested his collaboration or
friendship with anyone in the United States considered of
violent repute.‖ In re Yusupov, No. A 79-729-905, at 6 (IJ
Dec. Nov. 19, 2004).

IJ Durling noted the Government‘s argument that its
threshold for establishing a reason to believe an alien is a
danger is ―low.‖ Id. at 8. IJ Durling stated that even
accepting that argument, this ―requires at least a modicum of
evidence,‖ and ―some nexus between an alien‘s presence in
the United States and his activities or beliefs which quantify
him as a security risk,‖ which the Government failed to
provide. Id. The IJ afforded the politically motivated
extradition request no weight with regard to the allegations of
criminal misconduct. Id. at 10. In August 2005, the BIA
reversed the IJ‘s grant of withholding of removal on national
security grounds but upheld the grant of deferral of removal
for Yusupov under the CAT.

Yusupov and Samadov petitioned for review and this
court consolidated the petitions.

B. Third Circuit Remand

In Yusupov I, this court did not comment regarding the
sufficiency of the evidence as to whether either Petitioner
falls within the national security exception. Rather, we
limited our decision to an interpretation of the statutory
language that provides withholding of removal is unavailable
if ―there are reasonable grounds to believe that the alien is a
danger to the security of the United States.‖ INA §
241(b)(3)(B)(iv), 8 U.S.C. § 1231(b)(3)(B)(iv). We deferred
to the Attorney General‘s interpretation that reasonable

8
The Government also presented Agent Olexa as a
witness at Yusupov‘s hearing.
9
grounds to believe is satisfied ―if there is information that
would permit a reasonable person to believe,‖ a standard akin
to probable cause in criminal cases. Yusupov I, 518 F.3d at
200. In addition, we found that the Attorney General was
reasonable to interpret the exception as allowing the
consideration of any evidence that is ―not intrinsically
suspect,‖ including evidence that would not be admissible
under the Federal Rules of Evidence. Id. (internal quotation
omitted).

However, as relevant here, we overruled the Attorney
General‘s reading of the statutory phrase ―is a danger‖ as
requiring merely that an alien ―may pose‖ a danger. Id. at
201. Instead, we held that the provision applies only to
individuals who ―actually‖ pose a danger, reasoning that the
term ―is‖ simply ―does not mean ‗may.‘‖ Id. We refrained
from determining the ―contours of risk to our Nation‘s
defense, foreign relations, or economic interests‖ that would
pose the requisite danger, deferring to the Attorney General‘s
interpretation that the danger must be ―nontrivial.‖ Id. We
found the standard ―includes an inherent seriousness
requirement.‖ Id. at 204 (noting that ―the Attorney General
was not unreasonable . . . to ensure that immigration judges
do not consider trivial dangers in applying the national
security exception‖). This court remanded to the BIA for
application of the correct standard.

C. BIA on Remand

1. Yusupov

On remand, the BIA again reversed the decision of IJ
Durling granting Yusupov withholding of removal and
finding that Yusupov was not a danger to the security of the
United States. In so doing, the BIA engaged in de novo
review because it concluded that such a determination
―concerns an issue of fact and law.‖ In re Yusupov, No. A
79-729-905, at 2 (BIA Dec. June 18, 2009) (citing 8 C.F.R. §
1003.1(d)(3)(ii) and Matter of V-K-, 24 I. & N. Dec. 500
(BIA 2008)). Although the BIA found ―no clear error in the
[IJ]‘s credibility determination regarding [Yusupov‘s]
10
explanations of the reasons for downloading files on his
computer, or the potential that the Uzbek extradition request
and INTERPOL warrant are politically motivated,‖ it
nonetheless determined that ―[t]here is considerable evidence
to support the [Government‘s] claim that there are reasonable
grounds to believe that [Yusupov] presents an actual danger
to national security.‖ Id. at 2-3.

The BIA relied on the following evidence to support
its determination: (1) the extradition request; (2) the Interpol
warrant; (3) cached video clips found on the shared computer;
(4) the email sent to Zakirov, a sometime roommate of
Petitioners, referring to his ―role‖ in a ―big jihad;‖ (5) a
publicly available Pennsylvania Police facilities map from the
shared computer; (6) entry by Yusupov, Samadov, and their
roommate Zakirov to the United States on student visas, none
of whom attended school for any length of time; (7)
Yusupov‘s 2003 misdemeanor conviction for representing
himself as a United States citizen on a job application; and (8)
Yusupov‘s attempt to ―evade detention‖ upon learning that
the federal government sought to apprehend his roommates
and his initial failure to provide his residence to investigators.
Id. The BIA, however, upheld the IJ‘s decision granting
Yusupov CAT deferral, finding it is more likely than not that
he would be tortured if returned.

One member of the BIA panel dissented in a brief
footnote, stating:

On further reflection, Board Member Filppu
finds the favorable credibility assessement [sic]
below significant, and thus respectfully
dissents. The Immigration Judge was not
clearly erroneous in crediting [Yusupov‘s]
innocent explanations for what would
otherwise be reasonable concerns respecting
his danger to the United States. Accepting
those explanations as true, in the context of this
case, supports the ruling below, and [the
Government‘s] appeal should be dismissed.

11
Id. at 5.

2. Samadov

On remand, the BIA again upheld the 2005 decision of
IJ Sease denying Samadov withholding of removal as a
danger to the security of the United States. In so doing, the
BIA upheld the IJ‘s adverse credibility determination and
found that ―[t]here is considerable evidence to support the
[Government‘s] claims that there are reasonable grounds to
believe that [Samadov] presents an actual danger to national
security.‖ In re Samadov, No. A 79-729-711, at 2 (BIA Dec.
June 18, 2009).

The BIA relied on the following evidence similar to
that it considered in connection with Yusupov‘s appeal to
support its determination: (1) the extradition request; (2) the
Interpol warrant; (3) the video files; (4) the ―jihad‖ email;9 (5)
the Pennsylvania Police facilities map; (6) entry by Samadov
and Zakirov to the United States on student visas, neither of
whom attended school for any length of time; (7) the attempt
to evade detention by Samadov‘s former roommates,
Yusupov and Zakirov; and (8) Samadov‘s conflicting
testimony regarding whether he had ―given and received
thousands of dollars from groups or individuals‖ in Central
Asia. Id. at 2-3. The BIA here too upheld the IJ‘s decision
granting Samadov CAT deferral because it is more likely than
not he would be tortured if returned to Uzbekistan.

Yusupov and Samadov timely appeal.

II.

Jurisdiction and Standards of Review

9
The Government initially argued that this email had
been sent to Samadov, but it became clear during the
reopened proceedings that the email was addressed to
Zakirov. Indeed, the IJ questioned whether the
Government would have successfully reopened the case
based on the other materials alone. S.App. at 463-64.
12
 We have jurisdiction to review the BIA‘s final orders
of removal under INA § 242(a)(1), 8 U.S.C. § 1252(a)(1).
See also Yusupov I, 518 F.3d at 195-96. We review de novo
constitutional claims or questions of law and the application
of law to facts with appropriate agency deference. INA §
242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D); Yusupov I, 518 F.3d
at 197. We uphold the BIA‘s factual determinations if they
are ―supported by reasonable, substantial, and probative
evidence on the record considered as a whole.‖ Li v. Att’y
Gen., 400 F.3d 157, 162 (3d Cir. 2005) (internal quotation
omitted); see also 8 U.S.C. § 1252(b)(4)(B) (―administrative
findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary‖).
We review the IJ‘s findings under this same substantial
evidence standard to the extent ―the BIA directs us to the
opinion and decision of the IJ who originally assessed [the]
application.‖ Shah v. Att’y Gen., 446 F.3d 429, 434 (3d Cir.
2006) (alteration in original) (internal quotation omitted).

III.

Analysis

A. Forms of Relief

We begin our analysis with a brief discussion of the
forms of relief at issue in this petition. Yusupov and
Samadov were both granted deferral of removal under the
CAT. Petitioners bring this appeal in part to afford them
withholding of removal, under the INA and the CAT, which
they argue provides superior procedural and substantive
rights.10

10
Yusupov concedes that he is ineligible for asylum
for his failure to file an application within one year of his
entry. Although Samadov correctly states that the BIA in
its most recent decision did not consider his claim that his
asylum application was timely, in its first decision the
BIA specifically affirmed the IJ‘s denial of asylum for
failure to file within one year of arrival. This court lacks
13
 Consistent with our nonrefoulement obligations under
the 1967 United Nations Protocol Relating to the Status of
Refugees, section 241(b)(3)(A) of the INA, 8 U.S.C. §
1231(b)(3)(A), prohibits removal of an individual unlawfully
in this country if the Attorney General believes that the
individual‘s life or freedom would be threatened in the
country of removal on account of race, religion, nationality,
membership in a particular social group, or political opinion
(statutory withholding of removal).11 Credible testimony
alone may be sufficient to sustain the burden of proof without
further corroboration. 8 C.F.R. § 1208.16(b). In addition, the
CAT, as codified in regulation, provides for withholding of
removal if it is more likely than not that an individual would
be tortured if removed to the proposed country of removal. 8
C.F.R. § 1208.16(c).

Withholding of removal under both the INA and the
CAT is precluded if ―there are reasonable grounds to believe
that the alien is a danger to the security of the United States.‖
8 U.S.C. § 1231(b)(3)(B)(iv); 8 C.F.R. § 1208.16(d)(2). ―If
the evidence indicates the applicability of [the national
security exception], the applicant shall have the burden of

jurisdiction to review discretionary findings regarding
timeliness. See Sukwanputra v. Gonzales, 434 F.3d 627,
634 (3d Cir. 2006). Because the BIA has already decided
the issue, remand for this reason would likely be futile.
11
As explained in Yusupov I, 518 F.3d at 202-03, the
Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102,
107, amended existing law on withholding of removal to
conform it to Article 33 of the United Nations Protocol
Relating to the Status of Refugees, Jan. 31, 1967, 19
U.S.T. 6223, T.I.A.S. No. 6577 (―1967 Protocol‖).
Article 33.1 of the 1967 Protocol, to which the United
States is party, expresses the principle of nonrefoulement
that ―[n]o Contracting State shall expel or return
(‗refouler‘) a refugee in any manner whatsoever to the
frontiers of territories where his life or freedom would be
threatened on account of [the protected grounds].‖

14
proving by a preponderance of the evidence that such grounds
do not apply.‖ 8 C.F.R. § 1208.16(d)(2). The national
security exception, however, does not preclude grant of
temporary deferral of removal under the CAT if there is a
likelihood of torture. 8 C.F.R. § 1208.17(a).

This court recognizes that withholding of removal
provides greater protection and freedom than deferral of
removal. Indeed, deferral is a more easily revocable form of
relief, which would leave Petitioners vulnerable. See
Khouzam v. Att’y Gen., 549 F.3d 235, 240 n.3 (3d Cir. 2008).
The Government can also invoke an adverse security
determination to detain Petitioners indefinitely and place
them on restrictive supervised release.12 See 8 U.S.C. §
1231(a)(3)(D); 8 C.F.R. § 1241.14. Although withholding
like deferral does not provide the basis for adjustment to legal
permanent resident status, deferral recipients who are found
to be a danger to national security are considered inadmissible
or deportable, which makes them per se ―ineligible to receive
visas . . . to the United States.‖ 8 U.S.C. § 1182(a)(5). In
contrast, if granted withholding Petitioners would have no per
se bars to adjustment of status, and would thus be able to
obtain permanent residency through marriage, work, or
family.

Under the statutory scheme, the question whether an
alien is a danger to the United States arises only once the IJ or
BIA has found the alien is likely to be persecuted or tortured
if removed to the country of nationality. Absent such a
finding, the alien would be removed without consideration of
his or her danger to the United States. However, both
Immigration Judges and the BIA agreed that Yusupov and
Samadov are likely to be tortured if removed. Thus,
notwithstanding Congress‘ determination that restrictions on

12
During the course of these proceedings, Petitioners
spent three years in immigration detention. Although
Petitioners have since been released, the immigration
service ―continues to subject them to strict curfews, travel
restrictions and twenty-four hour electronic monitoring.‖
Petitioners‘ 28(j) Letter dated Dec. 28, 2010.
15
removal are warranted if there are reasonable grounds to
believe an alien poses a danger to national security, courts
must strictly interpret exceptions to nonrefoulement precisely
because they are applied to those determined to be deserving
of protection. See Yusupov I, 518 F.3d at 203-04 (In enacting
the 1980 Refugee Act, ―Congress intended to protect refugees
to the fullest extent of our Nation‘s international obligations.
Indeed . . . Congress intended to allow exceptions to our
nonrefoulement obligations only in a narrow set of
circumstances.‖); see also Xu Sheng Gao v. Att’y Gen., 500
F.3d 93, 98 (2d Cir. 2007) (narrowly interpreting bar to
withholding because it would authorize deportation of
individuals who have established that they would likely be
persecuted if returned).

B. BIA Standard of Review

Petitioners argue that the BIA misapplied its standard
of review and failed to properly credit the IJ‘s findings of
fact. In 2002, the Attorney General issued procedural reforms
clarifying the BIA‘s scope of review. See 8 C.F.R. §
1003.1(d)(3).13 Where the BIA reviews ―a mixed question of

13
Section 1003.1(d)(3) provides:

(i) The Board will not engage in de novo
review of findings of fact determined by an
immigration judge. Facts determined by the
immigration judge, including findings as to
the credibility of testimony, shall be
reviewed only to determine whether the
findings of the immigration judge are
clearly erroneous.
(ii) The Board may review questions of
law, discretion, and judgment and all other
issues in appeals from decisions of
immigration judges de novo. . . .
(iv) Except for taking administrative
notice of commonly known facts such as
current events or the contents of official
documents, the Board will not engage in
16
law and fact . . . now referred to as a discretionary decision,‖
it should ―defer to the factual findings of the immigration
judge unless clearly erroneous,‖ but it retains ―independent
judgment and discretion, subject to the applicable governing
standards, regarding the review of pure questions of law and
the application of the standard of law to those facts.‖ Board
of Immigration Appeals: Procedural Reforms to Improve
Case Management, 67 Fed. Reg. 54,878, 54,888-89 (Aug. 26,
2002) (internal quotation omitted).

As such, when evaluating an immigration judge‘s
determination whether there are reasonable grounds to believe
an alien is a danger to the United States, the underlying
circumstances – e.g. whether Yusupov watched the videos
and why or whether he attended English classes – are factual
questions subject to clear error review by the BIA. On the
other hand, when the BIA determines whether those facts
give rise to a reasonable belief that an alien is a danger to
national security it has before it a mixed question of law and
fact that requires its application of a legal standard to facts as
to which it retains ―independent judgment and discretion.‖14

factfinding in the course of deciding
appeals.
14
Yusupov argues that whether there are reasonable
grounds to believe he is a danger is a question of fact akin
to a likelihood determination, or a prediction of future
events, subject to clear error review, not de novo.
Yusupov misplaces reliance on two recent opinions of this
court. See Kaplun v. Att’y Gen., 602 F.3d 260, 269-71 (3d
Cir. 2010) (under CAT, probability of future torture is
finding of fact subject to clear error review, but whether
future events rise to level of torture is a legal question
reviewed de novo); Huang v. Att’y Gen., 620 F.3d 372,
383, 387 (3d Cir. 2010) (extending Kaplun to asylum
context, forecasting of what might happen to an applicant
if returned is a factual question subject to clear error
review, but whether events rise to the level of persecution
and give rise to a well-founded fear are reviewed de
novo). Kaplun and Huang are inapposite except to the
17
This follows our previous holding that whether there are
reasonable grounds to believe an applicant is a danger is akin
to a probable cause determination that requires a finding that
an applicant ―is‖ an actual and present danger. Yusupov I,
518 F.3d at 200-01. Probable cause determinations are
reviewed de novo. See Harshbarger v. Regan, 599 F.3d 290,
292 n.3 (3d Cir. 2010).

Although the BIA stated that it left the IJ‘s positive
credibility determination undisturbed and accepted Yusupov‘s
innocent explanations as true, we review the BIA‘s actions
rather than its statements. We agree with Yusupov that
notwithstanding the BIA‘s own regulation that states the
―Board will not engage in de novo review of findings of fact
determined by an immigration judge,‖ see 8 C.F.R. §
1003.1(d)(3), the BIA did not follow its own standard. For
example, the IJ found credible Yusupov‘s testimony that he
watched the videos out of a general interest in his country and
the conflicts in the area and that he believed the extremist
views of Osama bin Laden were inconsistent with true
Islamic beliefs. The IJ also found credible Yusupov‘s
testimony that he quit his job and evaded the authorities
because he feared deportation; when it became clear that his
friends with similar fears were not deported immediately and
were provided with an opportunity to present their claims, he
came out of hiding. Further, the IJ found credible Yusupov‘s
explanation that he did not provide his residential address to
investigators because he did not want to cause trouble for his
host in Virginia, not because he attempted to hide anything
suspicious. However, when the BIA concluded that the
presence of the videos and Yusupov‘s alleged evasion
provided reasonable grounds to believe he is a danger, it did
not appropriately defer to the IJ on these points.
In contrast, the BIA did not err in relying on
established facts not taken into account by the IJ regarding
Yusupov‘s manner of entry to the United States and his
misdemeanor conviction. Under the standard for mixed
questions of law and fact, the BIA was entitled to ―weigh the

extent they illustrate that questions under the INA often
involve multiple inquiries subject to varying review.
18
evidence in a manner different from that accorded by the
[IJ].‖ Matter of A-S-B-, 24 I. & N. Dec. 493, 497 (BIA 2008);
see also Rotinsulu v. Mukasey, 515 F.3d 68, 73 (1st Cir.
2008) (finding that the regulations were ―not intended to
restrict the BIA‘s powers of review, including its power to
weigh and evaluate evidence introduced before the IJ‖).
Whether this court finds that substantial evidence supports the
BIA‘s ultimate conclusion that there are reasonable grounds
to believe Petitioners are a danger is a separate inquiry to
which we now turn.

C. The Existence of Substantial Evidence

The Government urges this court to defer to the BIA‘s
finding that there are reasonable grounds to regard Petitioners
as a danger to the security of the United States. The
Government focuses on the Executive‘s power and expertise
in the area of national security, and relies on recent Supreme
Court precedent to support its position. In Holder v.
Humanitarian Law Project (HLP), the Supreme Court
acknowledged that ―when it comes to collecting evidence and
drawing factual inferences in [the area of national security
and foreign relations], the lack of competence on the part of
the courts is marked, and respect for the Government‘s
conclusions is appropriate.‖ 130 S. Ct. 2705, 2727 (2010)
(internal quotation and citation omitted).

We do not arrogate to ourselves knowledge and
sources superior to that of the Government. But neither
should we take its statements as ipse dixit. Its statements, like
that of any party, must be supported by the record it makes.

In HLP, the Government substantiated its position
regarding the operation of terrorist networks through
Congressional history, factual documentation, expert
testimony, and an affidavit from the United States
Department of State.15 On the contrary, this court has little to

15
In HLP, the plaintiffs argued that the criminal
material support statute impermissibly regulated their
speech because their support of designated foreign
19
which to defer in this case. Neither the BIA nor the
Government has provided the name of any potential terrorist
organization or extremist movement with which they claim
Petitioners are affiliated nor did either provide a ―coherent
and reliable narrative‖ connecting Petitioners‘ seemingly
innocuous actions and circumstances with any particular harm
that Petitioners pose to the United States. Malkandi v.
Holder, 576 F.3d 906, 916 (9th Cir. 2009). Without some
hard information, this court is left guessing. It is significant
that even the State Department has declined to offer any
opinion about the dangerousness of the Petitioners.

During the course of these proceedings, the State
Department issued letters to the immigration court concerning
Petitioners‘ applications. The Department explained that
issuance of the extradition requests is consistent with the
Uzbek Government‘s practice of using broad provisions in its
Criminal Code against political opponents for non-terrorism-
related activities. The Department declined to offer a position
with respect to Petitioners‘ applications, stating it ―has no
evidence connecting [Yusupov or Samadov] to acts of
terrorism. The information available does not allow the
Department to make a judgment as to whether [Petitioners]
otherwise present[] a threat to the national security of the
United States.‖ Y.Br.App. at 45, S.App. at 2170. As the
Supreme Court stated in HLP, ―concerns of national security
and foreign relations do not warrant abdication of the judicial
role.‖ 130 S. Ct. at 2727.
On remand, this court clearly instructed the BIA to
ascertain whether reasonable, substantial, and probative
evidence in the whole record reveals ―reasonable grounds to
believe‖ Petitioners ―actually pose a danger‖ to the United

terrorist organizations affiliated with the Tamil struggle
for independence in Sri Lanka would not further the
terrorist activities of the organizations. The Government
countered that terrorist organizations do not meaningfully
segregate support for their legitimate activities from the
nefarious. Id. at 2722-24. We have no reason to disagree
with the Government.

20
States – ―a more certain determination‖ than whether they
may or could be. Yusupov I, 518 F.3d at 201-02. The BIA
failed to follow this court‘s mandate when it issued
substantially similar opinions pre- and post-remand. We
recognize that the BIA ―is not required to write an exegesis
on every contention;‖ however, it must ―consider the issues
raised, and announce its decision in terms sufficient to enable
a reviewing court to perceive that it has heard and thought
and not merely reacted.‖ Filja v. Gonzales, 447 F.3d 241,
256 (3d Cir. 2006) (internal quotation omitted). A formulaic
recitation of our instructions simply does not suffice. See Dia
v. Ashcroft, 353 F.3d 228, 250 (3d Cir. 2003) (en banc)
(―[T]he soundness of the basis of the decision-making, even if
experiential or logical in nature, must be apparent.‖).

The closest the BIA comes to identifying a particular
threat posed by Petitioners involves their alleged support of
Muslim extremists, to wit terrorists, in Uzbekistan based on
the politically motivated Uzbek extradition requests and
Interpol warrants.16 See In re Yusupov, No. A 79-729-905, at
3-4 (BIA Dec. June 18, 2009) (the evidence ―shows a fair
probability that [Yusupov] supports and assists terrorist
activity‖); In re Samadov, No. A 79-729-711, at 4 (BIA Dec.
June 18, 2009) (the Government met its burden of

16
Under 8 U.S.C. § 1231(b)(3)(B)(iv), there are two
ways to determine whether an alien is ineligible for
withholding as a threat to national security. First, the
agency may find the alien has been involved in terrorist
activities or is a member of or associated with a terrorist
organization as described 8 U.S.C. § 1227(a)(4)(B), which
automatically renders the alien a danger. Second, the
agency may simply find that there are reasonable grounds
to believe the individual is a danger to national security
(i.e. defense, foreign relations, or economic interests).
There is little guidance in the statute or subsequent
interpretations as to the circumstances, other than
involvement in terrorist activity or membership, that
would render the alien a danger. Indeed, it appears that
the BIA rested its conclusions on a terrorism theory even
though the Government did not charge Petitioners as such.
21
establishing reasonable grounds that Samadov is a security
danger ―by supporting or assisting terrorism inspired by
Muslim extremists‖).

It appears that the principal basis for the BIA‘s finding
that Petitioners are a danger to the United States stems from
the extradition requests and Interpol warrants issued by the
Uzbek Government. Yet the BIA could not find that both IJs
were clearly erroneous in their findings that the extradition
requests and Interpol warrants were politically motivated and
based on Petitioners‘ peaceful, religious beliefs. Even giving
full deference to the BIA, we conclude that there is no
credible evidence in the record to support the BIA‘s
conclusion. On the contrary, there is overwhelming evidence
that Article 244 of the Uzbek Criminal Code, upon which the
Uzbekistan charges are based, is used by that government as a
pretext to single out and punish those in peaceful opposition
to the authoritarian regime. Y.Br.App. at 45, S.App. at 2110
(letter from State Department referring, inter alia, to Uzbek
Government‘s practice of using ―broad provisions in [its]
Criminal Code . . . against its political opponents‖ for non-
terrorism-related activities).

Olexa (who testified on behalf of the Government at
Petitioners‘ removal hearings, emphasized the extradition
requests and the Interpol warrants in support of a finding that
Petitioners were dangerous) apparently had no direct
knowledge about the situation in Uzbekistan, and offered no
information as to Petitioners‘ role in any alleged terrorist
activity in Uzbekistan.17 It would lead to a perverse outcome

17
The Senior Researcher on Central Asia for Human
Rights Watch, Acacia Shields, testified at Samadov‘s
hearing before the IJ that she does not know of ―any
Muslim groups [who favor the overthrow of the
government] in the territory of Uzbekistan.‖ S.App. at
2374. She testified that the Islamic Movement of
Uzbekistan (―IMU‖) ―was based in Afghanistan,‖ and did
engage in acts of violence, but she had not seen ―any
evidence‖ that the group still exists. Id. The IMU is on
the current list of foreign terrorist organizations
22
were we to allow reliance on the fundamentally questionable
extradition requests and Interpol warrants. How can the BIA
on one hand assert that the Uzbekistan charges are pretextual
and provide grounds for the United States to protect
Petitioners under the CAT while at the same time credit the
very same allegations to find Petitioners are a danger to this
country? The BIA‘s reliance on these documents is even
more problematic because, as we noted in Yusupov I, the
information therein was apparently obtained by torture. See
Yusupov I, 518 F.3d at 191-92 n.9; see also Boumediene v.
Bush, 476 F.3d 981, 1006 (D.C. Cir. 2007) (―Testimony
procured by coercion is notoriously unreliable and
unspeakably inhumane.‖); Abdah v. Obama, 709 F. Supp. 2d
25, 28 n.3 (D.D.C. 2010) (―statements that are the product of
torture are unreliable‖); cf. Costello v. United States, 365 U.S.
265, 280 (1961) (in a criminal case, ―the fruit of the
poisonous tree doctrine excludes evidence obtained from or
as a consequence of lawless official acts‖) (internal quotation
omitted). It follows that the documents relied on by the BIA
are not probative as a matter of law.

Even if there were some basis for the charges in the
extradition request, ―[t]errorist activity that is directed at
another country does not invariably or necessarily involve a
danger to the security of the United States.‖ Hosseini v.
Gonzales, 471 F.3d 953, 958 (9th Cir. 2006). See also
Cheema v. Ashcroft, 383 F.3d 848, 858 (9th Cir. 2004) (―it
does not follow that an organization that might be a danger to
one nation is necessarily a danger to the security of the United
States‖). The relevant statute and regulations adopted by the
United States are based on an underlying assumption that
aliens frequently seek protection from their own countries
that regard them to be dangerous, usually because of their
opposition to the government in power. If we were to allow

designated as such by the United States under INA § 219.
Foreign Terrorist Organizations, U.S. Dept. of State (Nov.
24, 2010), http://www.state.gov/s/ct/rls/other/des/
123085.htm. It is undisputed that Petitioners have no
affiliation with the IMU.

23
the BIA‘s decisions to stand, it would run counter to this
country‘s strong tradition of granting protection to individuals
sought by authoritarian regimes based on politically
motivated charges.18

The additional bases given by the BIA for its finding
that Petitioners are dangerous is based on evidence that is
impermissibly speculative. Samadov argues persuasively that
the legal standard requiring ―reasonable grounds to believe‖
Petitioners are dangerous cannot be met without presentation
of evidence satisfying probable cause. Guilt by association
does not suffice. See Scales v. United States, 367 U.S. 203,
224 (1961) (―In our jurisprudence guilt is personal . . . .‖);
United States v. Shields, 458 F.3d 269, 277 (3d Cir. 2006)
(probable cause ―must be . . . particularized with respect to
that person‖) (internal quotation omitted).

Part of the BIA‘s rationale for its conclusion that
Petitioners pose a danger to the United States lies in their
association with, inter alia, Zakirov. Samadov argues that the
BIA‘s rationale of guilt by association presents serious due
process concerns which we must avoid. He states that we can
do so by imposing a ―firm substantive requirement limiting
the application of the national security exception to cases in
which sufficient probative evidence establishes that an
individual is engaged in actual dangerous conduct, or
otherwise meaningfully associated with avowedly dangerous
organizations or countries.‖19 Samadov‘s Br. at 39-40. As

18
There is extensive evidence in the record on the
nature of the Uzbek regime. According to Human Rights
Watch testimony before the House of Representatives
Committee on International Relations, ―Uzbekistan cannot
be a good ally for the United States in the struggle against
terrorism unless it stops persecuting Muslims for the
peaceful expression of their faith.‖ S.App. at 3171-72.

19
The Fifth Amendment entitles non-citizens to due
process of law in, inter alia, deportation proceedings.
Reno v. Flores, 507 U.S. 292, 306 (1993).
24
Samadov points out, this limiting principle finds its roots in
Supreme Court jurisprudence requiring conduct or
meaningful association in the application of immigration
statutes to suspected Communist Party members in the middle
of the last century. See, e.g., Gastelum-Quinones v. Kennedy,
374 U.S. 469, 479-80 (1963) (holding mere membership in
Communist Party was insufficient to meet threshold
requirement of ―meaningful association‖ required for
deportation); Rowoldt v. Perfetto, 355 U.S. 115, 120 (1957)
(reversing BIA deportation order because active, dues-paying
Community Party member who worked at ―an official outlet
for communist literature‖ did not constitute meaningful
association to warrant deportation); Bridges v. Wixon, 326
U.S. 135, 145-46 (1945) (―course of conduct which reveals
cooperation with Communist groups for the attainment of
wholly lawful objectives‖ does not constitute ―affiliation‖ as
defined by INA).

This reading is also consistent with contemporary
cases applying the national security exception that stand in
sharp contrast to the instant case.20 In Malkandi v. Holder,
576 F.3d 906 (9th Cir. 2009), for example, the Ninth Circuit
found that substantial evidence supported the BIA‘s finding
that an Iraqi Kurd is a danger to national security. There, the
court found that Malkandi served as a ―travel facilitator‖ for a
notorious al-Qaeda operative who was involved in attacks
against United States interests overseas. Id. at 908. As the
court stated, the facts found by the BIA ―connect[ed] the
dots‖ between a known terrorist from the Middle East, a
Yemeni go between, and Malkandi. Id. at 915. The plot was
substantiated by the Government‘s expert witness as well as
specific 9/11 Commission findings and FBI interrogations of

20
Courts have even rejected the Government‘s
authority to detain ―enemy combatants‖ at Guantanamo
Bay based on mere speculation or guilt by association.
See, e.g., Al Mutairi v. United States, 644 F. Supp. 2d 78,
82 (D.D.C. 2009) (rejecting charge as speculative); Ahmed
v. Obama, 613 F. Supp. 2d 51, 65 (D.D.C. 2009)
(rejecting charge as associational).
25
the operative. Id. at 910-11, 915. Moreover, the court found
altogether implausible Malkandi‘s innocent explanations for
the charged conduct. It found that his pattern of
misrepresentations with the immigration authorities under
oath ―discredited his portrayal of himself as an innocent
participant.‖ Id. at 917. Cf. Matter of U-H-, 23 I. & N. Dec.
355, 356 (BIA 2002) (finding reasonable grounds to believe
Iranian national is a danger to national security because he is
a member of the Mujahedin-e Khalq (―MEK‖), a designated
foreign terrorist organization under INA § 219).

In contrast to its holding in Malkandi, in Cheema the
Ninth Circuit reversed the BIA‘s finding of dangerousness in
part because ―no evidence supplies a link‖ between the
applicants‘ alleged donations and ―any specific organization,
let alone . . . militant organizations.‖ 383 F.3d at 856. Cf.
Daneshvar v. Ashcroft, 355 F.3d 615, 628 (6th Cir. 2004)
(reversing BIA‘s order where government failed to establish
individual engaged in violent acts or that he knew or
reasonably should have known of terrorist organization‘s
activities).

The INA also contains a related bar to the grant of
asylum and withholding to individuals who have persecuted
others on account of one of the protected grounds. See 8
U.S.C. § 1231(b)(3)(B)(i). As the Second Circuit noted,
―courts must be cautious before permitting generalities or
attenuated links‖ when applying the bar for persecution of
others because the aliens have established that they will likely
be persecuted upon return to their country. Xu Sheng Gao,
500 F.3d at 98. See also Diaz-Zanatta v. Holder 558 F.3d
450, 455 (6th Cir. 2009) (―the alien must have done more
than simply associate with persecutors; there must have been
some nexus between the alien‘s actions and the persecution of
others‖); Singh v. Gonzales, 417 F.3d 736, 739 (7th Cir.
2005) (requiring a showing of ―genuine assistance in
persecution‖ rather than an ―inconsequential association‖).
The same concerns motivate our decision here.

The record does not provide substantial, if any,
evidence that Petitioners engaged in conduct that was
26
dangerous, or were planning as much, or meaningfully
associated with organizations or countries inimical to the
United States, terrorist or otherwise. Although a probable
cause requirement does not require more probable than not
proof, it does require more than mere suspicion. It is
established when ―the facts and circumstances within the
[Government‘s] knowledge are sufficient in themselves to
warrant a reasonable person to believe that an offense has
been or is being committed by [Petitioners].‖ Reedy v.
Evanson, 615 F.3d 197, 211 (3d Cir. 2010) (internal quotation
omitted). In analyzing whether probable cause exists, we take
a totality of the circumstances approach. Id. We therefore
proceed to consider each remaining ground given by the BIA.

Computer Materials: The BIA accorded evidentiary
significance to videos on the computer shared by the
occupants of Petitioners‘ apartment and to an email sent, not
to either Petitioner, but to someone else living in the
apartment. These materials either viewed individually or with
the record as a whole do not meet the probable cause
standard.21 With respect to the videos, the BIA made
significant prejudicial errors regarding the contents.22 The
record does not support the BIA‘s contention that Ayman za-
Zawahiri, Osama bin Laden‘s deputy, appeared in any of the
videos much less that he was giving a ―speech.‖ The BIA
also characterizes the video of Chechen rebel leader Shamil
Basayev as a ―speech,‖ whereas the record refers to it as an

21
Petitioners testified that they never saw the
Pennsylvania Police facilities map and the Government
presents no evidence to the contrary. Even if they had
viewed it, the BIA has provided no explanation for how
this publicly available map in any way demonstrates
Petitioners are a danger. This court can only presume that
is because there is none.
22
Because Olexa, the Government‘s expert, does not
speak the language contained in the videos, he was unable
to provide detailed descriptions of what was said, and
there was no translation provided.

27
―interview.‖ Y.App. at 364, S.App. at 1949. Further, the
BIA described one clip as ―appear[ing] to show how to wire a
roadside bomb.‖ In re Samadov, No. A 79-729-711, at 2
(BIA Dec. June 18, 2009). However, Agent Olexa
specifically testified that none of the videos were ―training
materials.‖ Y.App. at 191. Moreover, contrary to the BIA‘s
finding, several of the videos, including that of bin Laden,
originated from Al Jazeera, a recognized news source.23

As discussed above, the BIA also failed to
acknowledge that the IJ presiding over Yusupov‘s hearing
found credible Yusupov‘s innocent explanations. To now
find Yusupov‘s innocent explanations not credible, the BIA
must point to evidence in the record that compels the
conclusion that the IJ erred. 8 C.F.R. § 1003.1(d)(3)(i)
(―Facts determined by the immigration judge, including
findings as to the credibility of testimony, shall be reviewed
only to determine whether the findings of the immigration
judge are clearly erroneous.‖). It has not done so. The IJ
found that Yusupov understandably had a general interest in
the activities occurring in his home country in the name of his
religion and that he rejected the views espoused on the
videos, as opposed to his own beliefs and understanding of
Islam. Indeed, millions worldwide were glued to their
television sets and computers in the wake of 9/11 in an
attempt to understand the tragic events. The BIA has
provided no plausible link between the act of watching these
videos and any risk to this Nation‘s defense, foreign relations

23
Yusupov testified that some of the videos came from
the website, kavkazcenter.com. Y.App. at 206. Neither
party presented evidence about the nature of this website
yet the BIA characterizes it as ―pro-extremist.‖ In re
Yusupov, No. A 79-729-905, at 3 (BIA Dec. June 18,
2009). This court takes judicial notice of the website that
describes itself as ―a Chechen internet agency which is
independent, international and Islamic . . . . registered
with the CRI Ministry of Justice.‖ About Kavkaz Center,
Kavkaz Center, http://kavkazcenter.com/eng/about/ (last
visited May 19, 2011).
28
or economic interests.24 This court also finds significant the
IJ‘s finding, ignored by the BIA, that Yusupov did not intend
to permanently download or archive the videos in any way.

Reliance on the videos to support a finding of
Samadov‘s dangerousness is even more specious. A ―mere
propinquity to others independently suspected of criminal
activity does not, without more, give rise to probable cause.‖
Shields, 458 F.3d at 277 (internal quotation omitted). The
BIA impermissibly shifted the burden on the required
showing with respect to national security to Samadov when it
required that he corroborate his assertions that no evidence
connected him to the activities of his roommate, Yusupov.25
See Malkandi, 576 F.3d at 915 (noting that the burden only
shifts to the alien to prove he is not a danger to national
security once the Government has provided substantial
evidence that he is). Even if Samadov happened to be present
when Yusupov was watching the videos, inadvertent viewing
does not constitute evidence of affirmative, nefarious activity.
Cf. Shields, 458 F.3d at 279 (active registration with e-groups
dedicated to trading child porn negated inference that
defendant stumbled upon the sites never to return).

24
As IJ Durling noted, the situation in Chechnya
referred to in some of the videos ―is quite complex and
selected depictions from computer video files is woefully
inadequate to form even a basic understanding of that
long-simmering conflict.‖ In re Yusupov, No. A79-729-
905, at 7 n.11 (IJ Dec. Nov. 19, 2004).
25
At oral argument, the Government argued that
Yusupov‘s testimony demonstrates that Samadov watched
the videos. However, Yusupov‘s testimony was not
presented to the immigration court in Samadov‘s case. In
any event, this testimony is hardly affirmative evidence
that Samadov, lumped together with the ―whole world,‖
watched any videos, let alone the specific videos in
question. Y.App. at 209-10.

29
 The Government did not present evidence that either
Petitioner ever saw the email referring to ―jihad‖ on the
computer. Moreover, the email is vague, see supra note 4,
and the BIA, relying on stereotype and speculation failed to
consider alternative meanings presented by Petitioners. In
Yusupov I, we instructed the BIA on remand to consider the
weight of Petitioners‘ evidence that there are alternative
meanings to the word ―jihad.‖ In addition to violent holy
war, which is the commonly used meaning of jihad, other
meanings proffered on the record include ―from an inward
spiritual struggle to attain perfect faith to an outward material
struggle to promote justice and the Islamic social system.‖
Yusupov I, 518 F.3d at 191 n.7 (internal quotation omitted).
Petitioners‘ consistent testimony, corroborated by country
conditions evidence, was that they identify as Independent
Muslims who follow a peaceful practice.

In short, ―in spite of the number of years‖ Petitioners
have been present in this country, their computer ―did not
produce any direct or causal link suggesting that [they]
espoused violence, such as email messages of a questionable
nature.‖ In re Yusupov, No. A 79-729-905, at 6 (IJ Dec. Nov.
19, 2004).

Manner of Entry: Once again, we are unanimous that
the BIA‘s finding that Petitioners‘ manner of entry supports a
finding of dangerousness is not supported by substantial
evidence. Samadov entered on a student visa with Zakirov
and attended a four week program.26 Yusupov also entered
on a student visa several months later but unlike his former
roommates, never attended school. Y.App. at 109-10.
Petitioners testified that they did not follow through with their

26
The Government asserts that Samadov only attended
two weeks of school in contrast to Samadov‘s testimony
that he attended four weeks of school, as originally
planned, and then stopped for financial reasons and
thereafter sought work. S.App. at 2297. The IJ stated that
Samadov and Zakirov ―spent four weeks studying English
as a second language.‖ S.App. at 2215.

30
education for financial reasons. Y.App. at 109-10, 129,
S.App. at 2297. This explanation is not inherently suspect
and cannot substitute for affirmative evidence of
dangerousness.27 See Hosseini, 471 F.3d at 958 (reversing
denial of withholding of petitioner who overstayed student
visa, because BIA ―made no finding, and cited no evidence,
of any reason other than terrorist activity [abroad] why
Hosseini is a danger to the security of the United States‖).

The Government makes passing reference in its briefs
to its suspicion based on the timing of Petitioners‘ entries to
the United States as just after a bombing in Uzbekistan in
1999. However, it makes no attempt to ―connect[ ] the dots‖
between this event and any actual evidence implicating
Petitioners. Malkandi, 576 F.3d at 915. Petitioners have
submitted evidence that the Uzbek Government itself was
implicated in the 1999 bombings and used the events to crack
down on opponents of its regime. Y.App. at 788, S.App. at
930.28

Alleged evasion of the authorities: The BIA‘s finding
that Yusupov and Zakirov sought to evade detection by the
authorities in the United States through interstate and
international flight mischaracterizes the record and fails to
acknowledge the plausible explanations provided by

27
The Government directs us to the Congressional
reports of the 9/11 Commission to support its contention
that the manner of entry is suspect. Yet, the Government
admits that this report does not establish any facts
pertaining to Petitioners in particular. See Appellee‘s Br.
in Yusupov v. Att’y Gen. at 41; Appellee‘s Br. in Samadov
v. Att’y Gen. at 53. We cannot draw conclusions
regarding Petitioners from this report.
28
We recognize that some of the Government‘s
suspicions may stem from the fact that some of the aliens
responsible for the 9/11 bombings entered this country on
student visas, but we know of no basis to attribute the
same terroristic intent to all foreign student visa holders.

31
Petitioners. Although Zakirov left the United States before
the Government had a chance to file a motion to reopen with
the new evidence found on the roommates‘ shared computer,
there is nothing in the record to suggest that the Government
or the BIA has attempted to rescind the grant of withholding
of removal. See In re Zakirov, No. A 79-729-712 (BIA Dec.
Sept. 21, 2004). Petitioners contend that Zakirov traveled
openly to Canada after being granted withholding of removal
and the Government presents no evidence in contradiction.
Indeed, at that time, nothing prevented Zakirov from seeking
asylum, a more permanent form of relief, in Canada after his
proceedings in the United States were final.29 In any event,
the BIA does not explain why it paints Petitioners with
Zakirov‘s brush.

Yusupov testified that he moved to Virginia after
being granted withholding of removal, not in an attempt to
evade the authorities. However, after he learned that the
Government reopened Samadov‘s case and incarcerated him,
Yusupov quit his job to avoid detection because he feared
deportation to Uzbekistan where he believed he would be
tortured. Y.App. at 149. As soon as Yusupov learned that
the Government was not going to deport his friends, he
returned to his Virginia job and cooperated with subsequent
investigations. Y.App. at 150. The BIA has not explained
why it did not take this alternate, credible explanation into
account. See Yan Lan Wu v. Ashcroft, 393 F.3d 418, 425 (3d
Cir. 2005) (unexplained decision not supported by substantial
evidence where contrary to testimony).

29
A subsequent agreement between the United States
and Canada prevents Canada from adjudicating an
application for asylum already decided upon in the United
States and vice versa. However, this rule would not apply
to Zakirov who appears to have entered Canada prior to
December 29, 2004 when the agreement became effective.
See Agreement Between the Government of the United
States of America and the Government of Canada for
Cooperation in the Examination of Refugee Status Claims
from Nationals of Third Countries, U.S.-Can., Dec. 5,
2002, Can. T.S. No. 2.
32
 There is no evidence that Samadov sought to evade
detection. Any purportedly suspicious activities undertaken
by Samadov‘s friends are, as a matter of law, insufficient to
establish individualized suspicion against him. This is
particularly applicable here, as the three individuals were no
longer living together. The Government speculates that
Samadov did not flee because ―it would have been more
difficult for him to do so—and perhaps in his mind, less
necessary—because he had married an American citizen.‖
Appellee‘s Br. at 51 n.19. No evidence supports this
speculation. Moreover, ―where a factor and its opposite can
both be used‖ to support a finding of reasonable suspicion,
here flight or no flight, ―the court should not give weight to
either factor.‖ Gonzalez-Rivera v. I.N.S., 22 F.3d 1441, 1446-
67 (9th Cir. 1994).

Yusupov’s Misdemeanor Conviction: The BIA has
failed to explain how Yusupov‘s misdemeanor conviction for
misrepresenting his nationality in an attempt to obtain
employment provides any connection to his asserted
dangerousness.30 The IJ in Yusupov‘s hearing and the BIA
found Yusupov‘s testimony to be credible regarding the heart
of his claims (the prior standard) and there is no evidence that
claiming citizenship to obtain employment indicates he is a
danger. This is not unusual behavior, albeit undesirable and
unlawful, for the tens of thousands of economic migrants and

30
The Government makes some attempt to connect his
behavior seeking a job by claiming that instead of
enrolling in language school, Yusupov earned money and
sent it ―to the families of criminals in Uzbekistan.‖
Appellee‘s Br. at 41. This argument distorts the record –
Yusupov testified that he sent the money to other
Independent Muslims like himself targeted by the Uzbek
authorities. Because the BIA did not rely on it, it merits
little, if any, weight.

33
refugees who enter our borders each year and does not here
support a finding of probable cause.31

Samadov’s adverse credibility determination: The
charge emphasized most vehemently by the BIA and the
Government stems from the adverse credibility finding made
by the IJ. Samadov argues that finding is clearly erroneous, is
not material to any of the Government‘s allegations that he is
a danger and, even if upheld, cannot be used to undermine
Samadov‘s other testimony. It is, however, our responsibility
to examine the record scrupulously in this connection.

Like factual findings, ―adverse credibility
determinations are reviewed for substantial evidence.‖
Balasubramanrim v. I.N.S., 143 F.3d 157, 161 (3d Cir. 1998).
As such, ―adverse credibility determinations based on
speculation or conjecture, rather than on evidence in the
record, are reversible.‖ Dia, 353 F.3d at 249 (internal
quotation omitted).

Notably, at Samadov‘s first hearing, IJ Sease found his
testimony regarding his activities in Uzbekistan and the origin
of the extradition request to be ―extremely credible.‖ S.App.
at 46. In the reopened proceedings, the same IJ without
recanting her earlier findings, found Samadov‘s account of
some aspects of his life in Philadelphia to be not credible. In
re Samadov, No. A 79-729-711, at 9-10 (IJ Dec. Aug. 2,
2005). The IJ based her latest adverse credibility finding on
the following: (1) Samadov did not know every guest who
stayed at the communal home rented in his name in
Philadelphia; (2) Samadov was not familiar with everything
stored on the computer he shared with his roommates; and (3)

31
This court also finds significant that in January
2007, a district court in the Middle District of
Pennsylvania found that special circumstances (e.g.
adverse foreign policy consequences or anti-terrorism
concerns) did not warrant Yusupov‘s continued detention.
Yusupov v. Lowe, No. 4:06-CV-1804 (M.D. Pa. Jan. 12,
2007). The Government did not even argue that special
circumstances existed in that case.
34
Samadov did not mention that he wired $3,000 to his brother
in Uzbekistan when he was initially questioned by the
Government about money sent home.

No record evidence supports the IJ‘s first contention
that it was implausible that Samadov did not know everyone
who was living in his house. Samadov was never asked to
provide the occupants‘ names and never testified that he
lacked this knowledge. Rather, Samadov testified to the
transient nature of the house and testified that anywhere from
six to eight men lived there at any given time. The
Government conceded at oral argument that this was a
―peculiar finding‖ by the IJ that does not support the adverse
credibility determination. Tr. of Oral Arg. at 58.

The IJ‘s second contention is based on pure conjecture
and similarly cannot support a lack of credibility on the part
of Samadov. Dia, 353 F.3d at 249-50. Samadov testified that
he never saw the materials found on the computer and that he
rarely used the computer because it was frequently in use by
others in the house and he spent little time at home given his
work schedule. S.App. at 430. As we previously noted, the
Government presented no evidence to the contrary. Indeed,
as Samadov points out, the Government failed to inform the
IJ that ―Yusupov had admitted that he was the one who found
the videoclips on the internet, and that in the course of
viewing they were cached – not downloaded, as the BIA
claimed – on the computer without his knowledge.‖
AALDEF Br. at 26. We see no basis in the record for the IJ‘s
finding that Samadov must have known about the cached
videoclips. That finding is impermissibly based on the IJ‘s
assumption that Samadov would have been interested in the
video contents because he is a Muslim.

Finally, we examine the record for any support for the
IJ‘s determination that Samadov‘s testimony concerning the
wire transfer to his brother is suspect. The Government
argues that Samadov could not have honestly forgotten
sending $3,000 to his brother five years prior to the hearing.
Samadov counters that when he was first questioned about
sending money to Uzbekistan, the questioning was focused on
35
charitable contributions32 and because he regarded the
payment to his brother as a repayment of a debt obligation, he

32
For example,

Q. Sir, they say that you‘ve have
sent money back to Uzbekistan to fellow
followers of Iman Nazarov, have you not?

A. No.

Q. No? Who have you sent money
to (indiscernible)?

A. I sent to people there poor and
needy people.

Q. And how did you learn the
identities of the poor and needy people who
needed money?

A. How I?

Q. Yes, how did you know who to
send the money to?

A. Because I give my friends with a
person who‘s in charge of they give that
person people. They are responsible to give
that charity to those people.

Q. How much money do you think
you‘ve sent back to Uzbekistan since you‘ve
been here in the United States?

A. Maybe $200.

Q. Two hundred dollars total?

A. Yes. Yes.

36
 Q. That‘s your best recollection?

A. Yes.

Q. In what sort of increments of
money have you sent there?

A. I don‘t understand the question
increments?

Q. You sent $200 once and that‘s it
or did you send $10 one day, $10 another - -

A. Twenty dollars, thirty dollars,
whenever I feel give charity when I hear
about somebody needs because so many
families back there their husbands, their
fathers in jail, their wives don‘t work, their
kids are starving.

Q. Well, who is communicating
these needs to you?

A. We have Muslim brothers in my
country.

Q. And how would they
communicate to you about their need for
money?

A. Well, they can my friends call,
they call or when I call my brother I found
out about it. I send money for my relatives
where ever I ask my brother this person is
alright? This neighbor is alright? Because
sometimes I call, my brother says, my mom
says listen to my neighbors take in to
custody, the kids are starving. Then I say,
I‘m not going to eat food here (indiscernible)
37
did not think it was relevant. See AALDEF Br. at 28 (―many
Muslims draw a stark distinction between the concepts of
debt and charity‖).

Samadov argues that a review of the transcript makes
clear that he did not intend to mislead the factfinder. When
Samadov sought to explain his testimony, the IJ denied him
the opportunity to clarify his responses. S.App. at 440-41.
See Caushi v. Att’y Gen., 436 F.3d 220, 226 (3d Cir. 2006)
(citing Campos-Sanchez v. I.N.S., 164 F.3d 448, 450 (9th Cir.
1999) (requiring the BIA to consider applicant‘s explanations
for inconsistencies before making a credibility
determination)); Don v. Gonzales, 476 F.3d 738, 741 (9th Cir.
2007) (IJ must ―provide a petitioner with a reasonable
opportunity to offer an explanation of any perceived
inconsistencies that form the basis of a denial of‖ relief)
(internal quotation omitted).

The Government‘s argument that Samadov only
admitted to transferring money to his brother because the
Government confronted him is belied by the record.33

they are starving there. And that‘s what my
religion teached me.

Q. And you‘re sure that it wouldn‘t
be more than $200 (indiscernible)?

A. Yes, yes, sure.

S.App. at 425-426.

33
An examination of the testimony bears this out.
After a break of a few weeks, the hearing resumed and the
Government lawyer focused on what he regarded as the
inconsistency in Samadov‘s testimony, stating:

And now we have bank records that
show, that in fact, in June of 2000 he wired
a substantial sum of money, apparently to
38
 his brother. Some $3,000 and Mr. Arlow
gave a copy to me before the hearing. I
don‘t know whether he‘s intending to
submit it into evidence, I believe he just
received it yesterday, that is a I believe is a
handwritten fax from the respondent‘s
brother confirming that he received $3,000
in June of 2000 from his brother.

S.App. at 447. Samadov was then recalled:

JUDGE TO [SAMADOV‘S LAWYER]

Q. Mr. Arlow, you certainly have
the right to question your client as well, but
I believe that the Government has asked to
recall you and I certainly want to know,
want some explanations between what you
previously said and the bank records that
the Government has supplied.

A. May it please the court, we also
agree that the money was transferred. It‘s
not just that they‘re bank records. It‘s
acknowledgement of receipt. There‘s not a
question that the money was transferred.

...

[GOVERNMENT LAWYER] TO MR.
SAMADOV

Q. Mr. Samadov, did you send
approximately $3,000 U.S. dollars to
someone in Uzbekistan about June 20th,
2000?

A. Yes, I did send (indiscernible) I
send to my brother. Like I said in my
court, last previously court date, --
39
 JUDGE TO MR. SAMADOV

Q. The answer is yes or no, sir.

MR. SAMADOV TO [GOVERNMENT
LAWYER]

Q. Yes, to my brother, not to
someone

A. Okay.

Q. And how did you do that?

A. Yes, I wired the money. It was
my (indiscernible) pay.

Q. And how did you wire the
money?

A. My account.

...

Q. And, how long did it take you to
save up that money?

A. A year and a half.

Q. Okay. And this was as you said,
your first priority was paying him back,
right?

A. Yes.

Q. Because it had been a big
hardship to him to help you out?

40
Samadov testified that he telephoned his brother to help him
remember the amount of debt he repaid before the hearing.
At the continued hearing, Samadov produced a letter from his

A. Exactly. He had bankruptcy so I
knew that –

Q. And you must‘ve felt good that
you were paying him back and helping him
out?

A. I‘m not helping out, it‘s just
whatever my debt. It‘s nothing extra.

Q. Right. All right. But you were
glad that you were able to fulfill your debt.

A. Of course, you know, as a
brother.

Q. Had you forgotten all of this last
time we had a hearing here and I asked you
whether you had ever wired any money to
Uzbekistan?

A. Yes, because it was debt. It was
nothing extra. That‘s why I can‘t see, as
like I said, I want to make very clear. In
my previous court hearing, I said your
question and the Judge also ask, did you, I
said I don‘t remember. Like you said, but
if I did, I said I did send to my brother.
You ask was it Isroil Samadov, I said who
was that person. I said Isroil Samadov. If
I (indiscernible) say I sent to my brother.
You ask who was it. It‘s on the record and
I said Isroil Samadov. I spell the name
very clear.

S.App. at 450-454.

41
brother, and on his own accord, provided an explanation for
the discrepancy that arose in the prior hearing. S.App. at 560.

Regardless, this discrepancy does not go to the heart of
Samadov‘s claims and, as such, cannot support an adverse
credibility determination. Berishaj v. Ashcroft, 378 F.3d 314,
323 (3d Cir. 2004).34 The Government presented no evidence
and the IJ made no finding that this $3,000 supports a finding
of danger by Samadov to the United States. The IJ made no
finding that the $3,000 went to finance terrorist or extremist
activities, or that Samadov had any motive to lie or hide other
transfers.35 See Muhanna v. Gonzales, 399 F.3d 582, 590 (3d
Cir. 2005) (―one adverse credibility determination does not
beget another . . . an IJ must justify each credibility finding
with statements or record evidence specifically related to the
issue under consideration‖) (internal quotation omitted). This
is not surprising because, as the Government admitted at oral
argument, ―[t]here is no direct evidence.‖ Tr. of Oral Arg. at
67. The only reliable evidence is a letter from Samadov‘s
brother confirming that the money was sent to repay a debt.
S.App. at 560. Other than the $3,000, Samadov testified that
he sent about $200 cash to needy families, testimony the
Government does not dispute. Cf. In re R-S-H-, 23 I. & N.
Dec. 629, 641 (BIA 2003) (upholding adverse credibility
finding where respondent‘s testimony was directly related to
whether he was aware of the terrorist-linked activities of an
organization, despite his role therein).

34
Because Samadov filed his asylum application
before May 11, 2005, the pre-REAL ID Act standard
applies. Chukwu v. Att’y Gen., 484 F.3d 185, 189 (3d Cir.
2007).
35
The Government half-heartedly attempts to link this
transfer of cash with potential support for bombings that
occurred in Uzbekistan in 2004. Appellee‘s Br. at 44
n.15. However, the $3,000 was wired to Samadov‘s
brother in June 2000 and there is nothing in the record
linking this cash or his brother to any such activities. In
fact, Samadov was in Government custody at the time of
the bombing and in the months before.
42
 The IJ also noted that she took into account Samadov‘s
―demeanor, candor, [and] responsiveness.‖ In re Samadov,
No. A 79-729-711, at 9 (IJ Dec. Aug. 2, 2005). However, the
IJ did not explain why these factors demonstrated that all of
Samadov‘s testimony was incredible and the IJ‘s holding
deserves no deference.36 See Dia, 353 F.3d at 252, 275
(McKee, J., concurring) (―resting factual conclusions upon
unexplained and unarticulated demeanor poses an even
greater risk of biased fact finding that can deny a petitioner
due process‖). Accordingly, we find no evidence to support
the IJ‘s finding, adopted by the BIA, that Samadov‘s
testimony was not credible.

Neither the IJ nor the BIA made any affirmative
finding that the testimony it deemed incredible implicates
national security. Substantial evidence is required to link the
associations and activities of Yusupov and Samadov with one
of the criteria relating to the security of the United States.
The Government, ―[w]ith the extensive resources of the
Executive Branch, including the resources of the Departments
of Defense, State, Justice, Treasury and others . . . is in a
unique position to provide such evidence.‖ Cheema, 383
F.3d at 857. The Government has not so done. The evidence
viewed as a whole not only supports a conclusion contrary to
the BIA, but compels it. See Abdille v. Ashcroft, 242 F.3d
477, 484 (3d Cir. 2001).

36
The Government argues that ―Samadov was
frequently uncooperative and belligerent, and had to
repeatedly be instructed to answer the questions that were
posed to him, and not be argumentative.‖ Appellee‘s Br.
at 48. The Government mischaracterizes the record and
misinterprets what appears to be Samadov‘s confusion,
not unexpected given frequent language and cultural
barriers in immigration proceedings.
43
 IV.

Conclusion

As we have set forth in some detail, we conclude that
the BIA‘s determination that Petitioners Yusupov and
Samadov present an actual and present danger to the United
States is not supported by substantial evidence. We are
acutely cognizant that, in most respects, Congress has
delegated issues of national security with respect to aliens to
the agencies that deal with immigration, most particularly to
the Board of Immigration Appeals. We recognize that the
BIA is in a position of knowledge superior to that of the
federal courts. Nonetheless, we retain our historic, indeed
constitutional authority, to review executive agencies‘
determinations, giving their determinations due deference. In
that vein, we do not decide that Petitioners do not present a
danger to this country‘s security; we merely decide that the
Government has not proven that they are!

Ordinarily, the ―proper course . . . is for an appellate
court to remand to the agency for additional investigation or
explanation.‖ Kang v. Att’y Gen., 611 F.3d 157, 168 (3d Cir.
2010) (internal quotation and brackets omitted). However, in
rare circumstances ―where application of the correct legal
principles to the record could lead only to the same
conclusion, there is no need to require agency
reconsideration.‖ Id. (internal quotation and brackets
omitted). This is such a case.

There is no dispute that Petitioners would be
persecuted and tortured on religious and political grounds if
returned to Uzbekistan. No amount of reconsideration by the
BIA will change that. Where the BIA has twice considered
the whole record and failed to support its conclusion that
Petitioners are a danger to national security with substantial
evidence, and where the Government represented at oral
argument that there are no additional facts or evidence to link
either individual to activities or groups adverse to United
States interests, there is no reason to remand. See, e.g., Zhu v.
Gonzales, 493 F.3d 588, 602 (5th Cir. 2007) (―[T]he BIA has
44
now had two opportunities to address the legal and factual
issues that are again before this court; we need not give it a
third bite at this apple.‖).

It follows that Yusupov and Samadov are entitled to
mandatory withholding of removal as a matter of law.37 See
I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 420 (1999). ―When
the outcome is clear as a matter of law . . . remand is not
necessary.‖ Mahmood v. Gonzales, 427 F.3d 248, 253 (3d
Cir. 2005). Accordingly, we grant the petitions for review
and direct the BIA to grant Petitioners‘ applications for
withholding of removal.

37
We deny Samadov‘s request that we overturn the
agency‘s denial of asylum. This court lacks jurisdiction to
do so. See supra note 10.
45