United States Court of Appeals
For the First Circuit
No. 02-2606
ADEL NAGI EL MORAGHY,
Petitioner,
v.
JOHN ASHCROFT, Attorney General,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Selya and Lynch, Circuit Judges,
Young,* District Judge.
Saher Joseph Macarius for petitioner.
Harvey Kaplan, with whom Kaplan, O'Sullivan & Friedman, Beth
Werlin, Mary A. Kenney, Nadine K. Wettstein, and Iris Gomez, were
on the brief for American Immigration Law Foundation, Massachusetts
Law Reform Institute, and the New England Chapter of the American
Immigration Lawyers Association, amici curiae.
William C. Peachey, Attorney, Office of Immigration
Litigation, with whom Robert D. McCallum, Jr., Assistant Attorney
General, and Linda S. Wernery, Senior Litigation Counsel, were on
brief for respondent.
June 12, 2003
*
Of the U.S. District Court for the District of
Massachusetts, sitting by designation.
LYNCH, Circuit Judge. This case causes us to review a
denial of an application for asylum by a Coptic Christian Egyptian
national based on grounds of religious persecution. Although the
Board of Immigration Appeals ("BIA") affirmed the denial of asylum
using its relatively new summary affirmance procedure, it should
not have done so. Basic flaws in the methodology and reasoning
used by the Immigration Judge ("IJ") undercut his reasoning and so
we remand. We reject the notion that a State Department country
condition report must specifically name a petitioner or his family
members to be useful in the analysis of an asylum application. We
also reject the notion that an IJ, particularly in the absence of
any adverse finding as to petitioner's credibility, may simply
ignore the need to make a finding as to whether petitioner has
demonstrated past persecution on account of one of the specified
grounds for asylum. But one swallow does not make a spring, and we
reject again the petitioner's wholesale attack on the BIA's summary
affirmance procedure.
Adel Nagi El Moraghy, a native and citizen of Egypt,
entered the United States in 1999 on a tourist visa, which he
subsequently overstayed. In 2000, El Moraghy, a Coptic Christian,
applied for asylum, citing incidents of persecution by Islamic
fundamentalists while he was a student in the southern Egyptian
town of Assiut. His application for asylum, withholding of
removal, and relief under the Convention Against Torture ("CAT")
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was rejected by an IJ on May 16, 2001. El Moraghy appealed this
decision to the BIA, which upheld without opinion the decision of
the IJ. See 8 C.F.R. § 3.1(e)(4) (2003). El Moraghy, supported by
amici curiae, now petitions this court for review of the BIA's
decision. We remand for further consideration, finding that the
IJ's improper use of State Department country condition reports and
failure to make findings as to past persecution or credibility
prevent us from resolving the case on those grounds.1 We take no
view as to the petitioner's eligibility vel non for any of the
relief that he seeks.
I.
El Moraghy, then twenty-three years old, entered the
United States on a tourist visa at Newark Airport on February 18,
1999. He initially resided in Oklahoma City with his maternal
uncle, Dr. Wagdy Rizk, and later moved to Milford, Massachusetts.
During this time, El Moraghy received financial support from Dr.
Rizk and family in Egypt. After the expiration of his six-month
tourist visa, El Moraghy submitted an application for asylum on
February 10, 2000, including a signed statement, dated January 25,
2000, detailing alleged incidents of persecution in Egypt. On
March 23, 2000, El Moraghy was interviewed by an asylum officer who
1
The Attorney General has been substituted for the
Immigration and Naturalization Service as respondent with the
implementation of the Homeland Security Act of 2002, Pub. L. No.
107-296, §§ 441, 471, 116 Stat. 2135, at 2192, 2205 (Nov. 25,
2002). See 8 U.S.C. § 1252(b)(3)(A) (2000).
-3-
found him not credible. Four days later, on March 27, the
Immigration and Naturalization Service issued a Notice to Appear to
El Moraghy for overstaying his visa.
El Moraghy conceded deportability, but applied for
asylum, withholding of removal, and non-return under Article III of
the CAT. He said he sought "to escape the persecution of the
Muslim Fundamentalists in Egypt, because I am a Coptic Christian."
El Moraghy alleged that his life had been threatened on several
occasions because of his religious beliefs, aggravated by his
friendship with a Muslim woman. "The Egyptian government," he
said, "does little to protect Christians from attacks of the Muslim
Fundamentalists." According to El Moraghy, if he were forced to
return to Egypt, he would "be tortured or most likely killed by
Muslim Fundamentalists."
At his June 22, 2000 hearing, El Moraghy described a
handful of purported instances of persecution in Egypt. All of
these incidents happened in or near Assiut, Egypt, a town six hours
to the south of Cairo by train, where El Moraghy attended college.
El Moraghy is an active Orthodox Coptic Christian who grew up in
Cairo. Most Egyptians are Sunni Muslims, but approximately ten per
cent, or more than six million, belong to the Coptic Orthodox
Church. After his graduation from high school in 1993, El Moraghy
was assigned by the government to attend college in Assiut. El
Moraghy had no choice of where to attend college, and his later
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requests to transfer out of Assiut were denied. We describe the
five incidents as related by El Moraghy, as to which the IJ made no
credibility finding.
The first incident occurred shortly after El Moraghy
arrived at Assiut University in 1993. El Moraghy approached a
group of students to ask them about class schedules. When the
students noticed the cross tattooed on El Moraghy's right hand,
they verbally abused him and then departed. No physical violence
occurred at this time. A second incident took place in February
1994. El Moraghy was prevented from returning to his apartment by
individuals who told him that he would defile the ground outside
the mosque near his apartment, and that he had to wait until after
Friday prayers to return home.
The third incident took place on March 4, 1994. El
Moraghy met a girl he knew from church named Enass Abrahin Zaki on
campus. As they spoke, four students he described as members of
fundamentalist groups surrounded them and told him that he was
violating their rules by speaking with a woman. As El Moraghy
walked home afterwards, he was stopped by the same four
individuals, who pushed him into a secluded area and began beating
him. They hit him with belts and kicked him until they heard
someone coming and ran away. During the beating they called El
Moraghy an "infidel" and an "animal." El Moraghy's shoulder was
dislocated, his glasses were broken, and he felt concussed as a
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result of the beating. He subsequently saw a doctor, who referred
him to a hospital in Assiut. El Moraghy submitted a document
purporting to be a certificate from St. Mary's Medical Center in
Assiut that stated that on March 5, 1994, "Adel Nagi Naser Allah"2
was examined and found to have "a dislocated right shoulder,
concussion, and scratches around the right eye. This could be
[the] result of striking a rough solid object. The scratches
around the right eye could possibly happen as a result of shattered
glass."3 El Moraghy said he stayed in the hospital for three days,
but he did not report the incident to the police because he feared
that the fundamentalists would find out and kill him.
A fourth incident occurred in 1995. El Moraghy was
visiting a monastery, Daral Maker or Dar El Muhurak, more than an
hour away from Assiut. El Moraghy hired a taxi to drive him part
of the way back from the monastery. The taxi driver was playing an
anti-Christian tape. El Moraghy asked him not to play the tape
because he was a Christian; the driver responded by forcing him out
of the taxi, hitting El Moraghy hard enough to cause bleeding from
2
Arabic employs a patronymic naming system. El Moraghy's
certificate from Assiut University refers to him as Mr. Adel Nagy
Nasrallah Hanna.
3
El Moraghy submitted this certificate during the course of
the June 2000 hearing. At the conclusion of the hearing, a
continuance was granted, in part, to allow El Moraghy to acquire
his complete hospital records, and to authenticate them according
to 8 C.F.R. § 287.6. No further records were forthcoming at the
subsequent May 2001 hearing, however.
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one ear, and leaving him on the highway. Again, El Moraghy did not
report the incident to the police because he feared retribution.
The final incident grew out of El Moraghy's friendship
with a girl, Nadia Ziki, a Muslim who lived in Assiut. El Moraghy
met Ziki on the train in 1995 when she was visiting an uncle in
Cairo. They became friends, and Ziki asked El Moraghy to take her
along to see the monastery. Ziki said that, as an educated person,
she wanted to go to see the monastery herself, even though it might
be dangerous and she would be considered polluted in the eyes of
fundamentalists. El Moraghy eventually agreed to take her, and
they went together five or six times.
On their last visit to the monastery, on July 27, 1998,
they were stopped and forced out of Ziki's car on the way back to
Assiut by members of a group El Moraghy identified as Islamic
fundamentalists. El Moraghy and Ziki were driven, blindfolded, to
an unknown location. There they met with the group's leader. The
group's leader told them that the group knew about the relationship
between El Moraghy and Ziki, and that the only solution was for El
Moraghy to become Muslim and to marry her. (According to El
Moraghy, the relationship was a platonic one.) El Moraghy, the
leader demanded, must convert from Christianity to Islam. When El
Moraghy said he could not become Muslim, he was struck. A paper
was brought to El Moraghy, who was told that signing it would
amount to a conversion. Seeing no other way out, El Moraghy signed
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the paper, which committed him to become a Muslim. El Moraghy and
Ziki were then told that they had to wait for the official in
charge of conducting marriages to arrive, but it turned out that he
was not available. They were then told that they could leave, but
would have to return to complete the marriage.
Afterwards, El Moraghy took the train to Cairo, where he
met with a priest, named Arsanwos Basyeley Ragheb, from his church.
The priest told him he should flee, and recommended that he go to
the Marmina monastery in Alexandria. El Moraghy submitted a
statement from Arsanwos. In it, Arsanwos recalled advising El
Moraghy to go to the St. Mina monastery to escape "the tremendous
amount of psychological pressure that he was exposed to." Arsanwos
also said that he counseled El Moraghy to stay in the United States
"to get away from th[e] difficult atmosphere he was living in."
El Moraghy stayed at the monastery for a while, and then
returned to Cairo, where he resided with his grandmother. From
November 1998 until February 1999, El Moraghy worked at the Sonesta
Hotel in Cairo as a cashier, because he needed certification of
employment to be able to travel to the United States. El Moraghy
had previously worked at the Sonesta hotel during summer vacations.
During the two months before his departure, El Moraghy did not
return to his family home out of fear. He said that his mother had
received anonymous calls inquiring if he was there. El Moraghy's
theory was that he was a marked man, even in Cairo, based on the
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earlier events and his signed promise and subsequent failure to
convert to Islam.
El Moraghy's uncle, Dr. Rizk, testified at a second
hearing on May 16, 2001 that El Moraghy had told Dr. Rizk that he
had been beaten on multiple occasions, that his shoulder had been
dislocated, that the trouble had been caused by his friendship, as
a Christian, with a Muslim woman, and that his life was in danger
in Egypt. Dr. Rizk had also spoken to El Moraghy's mother, both on
the telephone and in person during a 2000 visit to Egypt, and said
that El Moraghy's family was very worried about him and feared that
he would be harmed if he returned to Egypt, but did not specify
their reasons for the fear. Dr. Rizk was cross-examined by the IJ
about his statement that El Moraghy had told him he had read the
conversion document he had been forced to sign; at the earlier
hearing El Moraghy had testified that he had not read the document.
This discrepancy concerned the IJ.
During the June 2000 hearing, El Moraghy testified that
none of his nuclear family members had experienced problems with
Islamic fundamentalists. He did know one person -- a friend's
mother -- who was killed in Egypt. But he remained afraid that he
would be killed if he returned to Egypt because once he had been
identified by the fundamentalists as a target, he would remain a
marked man.
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El Moraghy argued that the government could not control
fundamentalists and did little to protect Coptic Christians. To
demonstrate this, he submitted State Department country condition
reports for Egypt and newspaper articles describing anti-Coptic
terrorism in Egypt. According to the 1999 country condition
report, there are significant legal and social impediments placed
on Christians in Egypt. While Coptic Christians had previously
been the target of violent assaults, "there were no reports of
terrorist attacks against Christians during [1999]." The
government had begun prosecutions against some perpetrators of
previous attacks against Coptic Christians, but "some members of
the Christian community do not believe that the government is
sufficiently vigorous in its efforts to prevent attacks." The
country condition report for 1998 had noted that "Coptic Christians
are the objects of occasional violent assaults by the Islamic Group
and other terrorists. During [1998], extremists were responsible
for killing eight Christians in the Minya governorate [near
Assiut]." A 1996 country condition report described continuing
violence against Coptic Christians, with at least twenty-two
killed, including a group of eight in Assiut.
El Moraghy also submitted numerous newspaper articles and
other sources describing the history of persecution of Coptic
Christians in Egypt. The Islamic terrorist group Gama'a Islamiya
carried out attacks on Coptic Christians from 1992 on, operating
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mainly in the southern (or upper) regions of Egypt, including Minya
and Assiut governorates, but also in large towns such as Alexandria
and Cairo. In May 1992, thirteen Coptic Christians were killed in
Assiut in a single day. Nearly thirty people were killed in Assiut
in two weeks in February 1996. According to a 1998 Human Rights
Watch World Report, eight or more Coptic Christian students were
killed at a church youth group meeting in February 1997 in Minya
governorate. Newspaper accounts also relate kidnappings and forced
conversions of Christians.
The IJ issued an oral decision on May 16, 2001. He
denied El Moraghy's application for asylum, withholding of removal,
and relief under the CAT. He granted El Moraghy's request for
voluntary departure. The IJ noted that El Moraghy had attached
State Department country reports for Egypt for 1998 and 1999, and
other accounts of Muslim fundamentalism in Egypt, but said "[a]
review of those documents does not refer to the respondent or any
members of his family in Egypt." The IJ dismissed the purported
medical certificate from St. Mary's, saying that there were no
hospital records to corroborate El Moraghy's account. Furthermore,
he declared:
Outside of the respondent's self-serving declaration of
what happened to him in Egypt, other than what the
witness' uncle has testified in this proceedings has told
him after coming to the United States, there is not one
scintilla or iota of evidence to corroborate the
respondent's self-serving declaration of what happened to
him in Egypt and why he left Egypt and came to the United
States.
-11-
The IJ concluded that a similarly-situated person would not fear
persecution, nor would persecution be likely if El Moraghy were to
return to Egypt. The IJ did not make any finding that El Moraghy
was not credible, nor did he address whether El Moraghy had
suffered past persecution.
El Moraghy appealed the IJ's decision to the BIA. On
November 14, 2002, the BIA affirmed without opinion the IJ's
decision, relying on the summary affirmance procedure provided for
in 8 C.F.R. § 3.1(e)(4). El Moraghy, supported by amici,4 now
challenges the BIA's ruling, arguing that the BIA's affirmance was
in error, and that the IJ improperly failed to make a credibility
finding or analyze whether El Moraghy had suffered past
persecution. El Moraghy and amici also contend that the BIA's
application of the summary affirmance procedure was in error, and
that the summary affirmance regulations prevent judicial review of
the BIA's actions.
II.
The BIA's determination "must be upheld if supported by
reasonable, substantial, and probative evidence on the record
considered as a whole." INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992) (internal quotation omitted). "It can be reversed only if
4
The American Immigration Law Foundation, the Massachusetts
Law Reform Institute and the New England chapter of the American
Immigration Lawyers Association filed a joint amici curiae brief.
We acknowledge their assistance with gratitude.
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the evidence presented by [petitioner] was such that a reasonable
factfinder would have to conclude that the requisite fear of
persecution existed." Id.; accord Albathani v. INS, 318 F.3d 365,
372 (1st Cir. 2003). We "should not supplant the agency's findings
merely by identifying alternative findings that could be supported
by substantial evidence." Arkansas v. Oklahoma, 503 U.S. 91, 113
(1992). Our review is deferential, Vazquez v. INS, 177 F.3d 62, 64
(1st Cir. 1999), but "deference is not due where findings and
conclusions are based on inferences or presumptions that are not
reasonably grounded in the record, viewed as a whole, or are merely
personal views of the immigration judge." Cordero-Trejo v. INS, 40
F.3d 482, 487 (1st Cir. 1994) (citations omitted).
The petitioner bears the burden of establishing
eligibility for asylum by proving that he qualifies as a refugee.
8 U.S.C. § 1158(b)(1) (2002). A petitioner can do so by two
routes: "(1) by demonstrating past persecution, thus creating a
presumption of a well-founded fear of persecution; or (2) by
demonstrating a well-founded fear of persecution." Yatskin v. INS,
255 F.3d 5, 9 (1st Cir. 2001) (citing 8 C.F.R. § 208.13(b)). To
prove past persecution, an applicant must demonstrate that he has
suffered persecution on one of the five enumerated grounds: race,
religion, nationality, membership in a particular social group, or
political opinion. Id. § 208.13(b)(1). To establish a well-
founded fear of future persecution, applicants can either offer
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specific proof, or they can claim the benefit of a regulatory
presumption based on proof of past persecution. Guzman v. INS, 327
F.3d 11, 15 (1st Cir. 2003) (citing 8 C.F.R. § 208.13(b)(1));
Velasquez v. Ashcroft, 316 F.3d 31, 35 (1st Cir. 2002) (same).
Once an applicant "has been found to have established
such past persecution" he or she "shall also be presumed to have a
well-founded fear of persecution on the basis of the[ir] original
claim." 8 C.F.R. § 208.13(b)(1). That presumption can be rebutted
by an IJ's finding by a preponderance of the evidence either (1)
that "[t]here has been a fundamental change in circumstances such
that the applicant no longer has a well-founded fear of persecution
in the applicant's country of nationality," or (2) that "[t]he
applicant could avoid future persecution by relocating to another
part of the applicant's country . . . ." Id. § 208.13(b)(1)(i)(A)-
(B).
In order to demonstrate a well-founded fear of
persecution by direct evidence, a petitioner must satisfy both an
objective and a subjective test. Velasquez, 316 F.3d at 35.
"Under the subjective requirement, a petitioner must prove his fear
is genuine, while the objective component requires showing by
'credible, direct and specific evidence' that this fear is
reasonable." Id. (citation omitted) (quoting Ravindran v. INS, 976
F.2d 754, 758 (1st Cir. 1992)).
-14-
Even under this deferential review of agency decisions,
we conclude the IJ's decision cannot, on this record, be upheld.
The IJ fails to state conclusions at all on several important
issues. The IJ misused State Department country reports and failed
to address the issue of past persecution. In the absence of a
finding that the petitioner was not credible, the decision cannot
be affirmed as being based on substantial evidence. We require the
BIA "to exercise independent judgment, and to state plainly its
reasons for granting or denying relief." Chen v. INS, 87 F.3d 5,
7 (1st Cir. 1996); see also Gailius v. INS, 147 F.3d 34, 44 (1st
Cir. 1998) ("The need for clear administrative findings is implicit
in the statute under which we review the BIA's decision."). "[A]
reviewing court should judge the action of an administrative agency
based only on reasoning provided by the agency, and not based on
grounds constructed by the reviewing court." Yatskin, 255 F.3d at
9 (citing Gailius, 147 F.3d at 44). When the BIA summarily affirms
the IJ's opinion, as here, we review the decision of the IJ.
Herbert v. Ashcroft, 325 F.3d 68, 71 (1st Cir. 2003); Albathani,
318 F.3d at 373.
The BIA has changed its regulations to provide, "The
testimony of the applicant, if credible, may be sufficient to
sustain the burden of proof without corroboration." 8 C.F.R.
§ 208.13(a). The old regulations explicitly said that credibility
should be judged "in light of general conditions in the applicant's
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country of nationality or last habitual residence." Under the old
regulations, courts and the BIA routinely used country condition
reports to inform credibility judgments. See, e.g., Cordero-Trejo,
40 F.3d at 491-92. Country condition reports are still relevant as
to credibility, whether or not they specifically name the
applicant. See 3 C. Gordon, S. Mailman & S. Yale-Loehr,
Immigration Law & Procedure § 33.04[3][f], at pp. 33-52.21 to 23
(2003) (collecting cases applying old and new versions of §
208.13(a)). While State Department reports are "generally regarded
by courts of law as reliable," Cordero-Trejo, 40 F.3d at 492 n.6,
they are not binding on either the agency or the courts, Gailius,
147 F.3d at 46. Used in their normal fashion, namely, to provide
a context for assessing the credibility of a petitioner's account,
country reports can cut two ways: they can either help or harm a
petitioner's case, depending on whether or not they corroborate the
petitioner's tale.
The IJ here, however, appears to have employed the
country condition reports solely as a test of direct corroboration,
rather than for the purposes of providing context and generalized
credibility assessment. That is, the IJ appears to have improperly
imposed a requirement that the country condition reports refer
specifically to the petitioner or his family members. Rather than
reading State Department and other materials for a general
description of conditions faced by Coptic Christians in Egypt,
-16-
which would tend to corroborate the petitioner's claim or not, the
IJ appears merely to have searched for mentions of El Moraghy and
his family members. After each of the two State Department country
reports and other materials, the IJ noted "a review of the document
does not refer to the respondent or any members of his family in
Egypt." This sentence is repeated three times in the IJ's opinion,
and is followed by no further analysis of the documents in question
or how that information supports or does not support petitioner's
claims. It is unrealistic to expect that country condition reports
could contain references to all citizens of that country who have
faced, or might face, persecution on one of the specified grounds.
While country reports may, in rare instances involving prominent
dissidents, contain direct corroboration of a petitioner's account,
to demand that they do so and otherwise eschew any analysis of the
evidence is clearly erroneous.
In the present case, the IJ did not provide any finding
at all that El Moraghy had not suffered past persecution. Another
use of the country reports is by the government to show changed
conditions after an applicant has demonstrated past persecution.5
Changed country conditions rebut the presumption of future
persecution. The government here has not argued changed country
conditions, and the IJ made no finding on the point. But the IJ
5
Evidence of changed country conditions can also be used by
the petitioner as part of a motion to reopen. See 8 C.F.R.
3.2(c)(3)(ii).
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here failed to make any finding as to past persecution, a failure
which is independently significant.
In Yatskin, we noted the difficulty of conducting
meaningful judicial review of a decision by the agency finding "no
well-founded fear of persecution" when there was no underlying
determination of whether there had been past persecution. 255 F.3d
at 9. In Yatskin, we were able to avoid the issue and affirm the
BIA because, even taking Yatskin's testimony as true, the BIA was
well-justified in concluding that changed country conditions meant
Yatskin did not have an objectively reasonable fear of persecution.
Here, we have no such finding by either the BIA or the IJ. It is
not the job of the courts of appeals to make such findings for any
agency; here, "[n]o finding . . . was made by the agency, and it is
for the agency, not the courts, to make findings of fact."
Gailius, 147 F.3d at 44. The absence of reasoned discussion of
past persecution undercuts any meaningful review of the IJ's fear
of future persecution finding, because we do not know whether El
Moraghy should have had the benefit of the regulatory presumption
of fear of persecution based on prior events. See 8 C.F.R. §
208.13(b)(1).
Finally, the IJ's decision cannot be upheld on
credibility grounds because here too the IJ has not made any
finding. It may be that the IJ believed El Moraghy not to be
credible, which was the conclusion of the initial interviewing
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officer. If so, the IJ neither made such a finding, nor explained
the basis in evidence for such a finding, both of which are basic
errors. "[T]he IJ must, if he or she chooses to reject
[petitioner's] testimony as lacking credibility, offer a specific,
cogent reason for [the IJ's] disbelief." Gailius, 147 F.3d at 47
(internal quotation omitted). While we defer to the IJ on
credibility questions, that deference is expressly conditioned on
support in the record, as evidenced by specific findings:
[W]hen a hearing officer who saw and heard a witness
makes an adverse credibility determination and supports
it with specific findings, an appellate court ordinarily
should accord it significant respect. While the
obligation to defer should not be confused with an
obligation to rubber-stamp the hearing officer's
credibility call, such a determination merits judicial
approbation as long as the findings on which it rests
have sufficiently sturdy roots in the administrative
record.
Aguilar-Solis v. INS, 168 F.3d 565, 571 (1st Cir. 1999) (citations
omitted) (emphasis added). The IJ's passing comment that El
Moraghy's account is self-serving does not suffice. The testimony
of every applicant for asylum is self-serving. This does not make
it untrue.
Moreover, in his opinion, the IJ did not make a finding
that, even if everything El Moraghy said were true and even if the
country conditions had been properly considered as evidence of
context, what was presented by petitioner did not amount to either
past persecution or a well-founded fear of persecution. Neither
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the IJ nor the BIA make any such finding which would remedy the
inadequacies of the IJ's reasoning.
If the BIA or the IJ has not ruled on an issue, either
explicitly or implicitly, the respondent cannot ask us to uphold a
decision on those grounds. See Gailius, 147 F.3d at 44. We cannot
say the evidence compels a conclusion either way; in light of the
misuse of the country condition reports and the absence of key
findings, we remand. See id. at 47; Osorio v. INS, 99 F.3d 928,
933 (9th Cir. 1996).
We do not consider El Moraghy's withholding of removal
claim or his CAT claim, both of which require that petitioner meet
a higher burden of proof. See Aguilar-Solis, 168 F.3d at 569 n.3
(withholding of deportation requires a clear probability of
persecution); 8 C.F.R. § 208.16(c)(2) (applicant for relief under
the CAT bears burden of proof to demonstrate that it is more likely
than not that he would be tortured if removed to the proposed
country of removal).
III.
Petitioner and amici also ask us to reverse on the ground
that the BIA failed to satisfy its own regulatory requirements for
summarily affirming the IJ's opinion, and that the summary
affirmance regulations themselves improperly insulate the appeal
process from judicial review. We have already rejected the second
ground in Albathani and do so again today. As to the first ground,
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if the BIA erred in using its affirmance without opinion ("AWO")
procedure, our remand cures the problem. See generally Albathani,
318 F.3d at 378.
The AWO procedure allows affirmance by a single Board
member, rather than the usual three-member review. The IJ's
opinion is affirmed without further analysis, with the statement,
"The Board affirms, without opinion, the result of the decision
below." 8 C.F.R. § 3.1(e)(4)(B)(ii). The AWO procedure is
available when a Board member determines that the result reached by
the IJ was correct, that any errors in the decision were harmless
or non-material, and that either the issue is squarely controlled
by precedent and does not involve a novel fact pattern, or that the
factual and legal questions raised are so insubstantial that three-
member review is not warranted. Id. § 3.1(e)(4)(A)-(B). The
regulations governing the AWO procedure were first promulgated in
1999 in order to address a growing backlog of immigration appeals.
See Albathani, 318 F.3d at 376 n.8.
In Albathani, this court upheld the streamlining
regulations establishing the AWO procedure as constituting a
legitimate exercise of the Attorney General's discretion to fashion
its own rules of procedure. Id. at 377. The provision of reasons
in the IJ's opinion satisfies the requirement in SEC v. Chenery
Corp., 332 U.S. 194, 196-97 (1946), that administrative agencies
set forth with clarity the basis for their decisions, Albathani,
-21-
318 F.3d at 377, and the AWO procedure did not prevent there being
meaningful review.
Nonetheless, as we warned in Albathani:
[I]f the BIA identifies an alternative satisfactory
ground for upholding denial of asylum in a case with an
otherwise unsatisfactory decision by the IJ, it must
state it or risk remand. Ordinarily, the case will be
remanded to the agency [by the court of appeals], and the
agency will not, in the end, have saved any time or
effort.
Id. at 378. Here, streamlining a case "in which the reasoning
proffered by the IJ is faulty" has resulted only in additional lost
time and judicial resources. See id. If, in the end, El Moraghy
is granted the discretionary relief he seeks, the cost will have
been borne mostly by the courts, which have done what the BIA
should have done. And if El Moraghy is properly denied relief,
then the cost of the summary affirmance procedure will be, in
addition, that an alien who should have been removed has stayed
here even longer.
Still, while the IJ's opinion here was flawed, the
summary affirmance of one flawed IJ decision by the BIA does not
rise to the level of "evidence of systemic violation by the BIA of
its regulations" we identified as a precursor to even addressing
the question of whether a more searching review of the application
of the AWO regulations is available. Id. at 378-79. We need not
address the question of whether the decision to streamline this
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case was proper, because our review of the IJ's decision
necessitates a remand to the BIA for further proceedings.
IV.
The order of the BIA is vacated, and the case is remanded
to the BIA for further proceedings consistent with this opinion.
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