On Petition for Review of an Order of Removal from the Board of Immigration Appeals U.S. Department of Justice Executive Office for Immigration Review (BIA No. A78-514-349)
Before: Scirica, Chief Judge, Sloviter, Nygaard,
Alito, Roth, McKEE, Rendell, Barry, Ambro,
Fuentes, Smith, Becker and Stapleton,
The opinion of the court was delivered by: Rendell, Circuit Judge
Before: SLOVITER, RENDELL and STAPLETON, Circuit Judges.
Reargued En Banc May 28, 2003
Judge Rendell filed the opinion of the Court in which Chief Judge Scirica and Judges Nygaard, Barry, Fuentes, and Smith joined and Judges McKee, Ambro and Becker joined as to Part II. Judge Alito, joined by Judges Sloviter and Roth, filed an opinion concurring as to Part I and dissenting as to Part II. Judge Stapleton filed an opinion dissenting, in which Judges McKee, Ambro and Becker joined. Judge McKee filed an opinion concurring as to Part II.
In 2001, the Immigration and Naturalization Service (INS) charged Saidou Dia, a native of the Republic of Guinea, with removability for illegal entry into the United States. Dia conceded removability but applied for relief, seeking asylum, withholding of removal, and relief under the United Nations Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment.*fn1 Dia alleged that he had been, and would be, persecuted in Guinea due to his actual and imputed political opinions. The Immigration Judge (IJ) rejected Dia's allegations, finding that she was "not convinced that [Dia] has suffered past persecution" or that Dia would be persecuted and/or killed if he returned to Guinea. The IJ based her conclusion solely on her determination that Dia was not credible. Dia appealed to the Board of Immigration Appeals (BIA), which summarily affirmed the IJ's decision under its streamlining regulations. This petition for review followed. Our jurisdiction arises under 8 U.S.C. § 1252.
Two issues are before the court for consideration en banc:
First, we will review whether the streamlining regulations promulgated by the Attorney General are either inconsistent with the INA, or violative of Dia's due process rights under the Fifth Amendment. See U.S. Const. amend. V.
Second, we will review the adverse credibility determination made by the Immigration Judge and summarily affirmed by the BIA.
As to the first issue, we determine that the streamlining regulations are valid.
As to the second issue, however, we conclude that the IJ's analysis of Dia's credibility was based on reasoning that was at best unexplained and at worst speculative. Accordingly, it was not supported by substantial evidence.
We will grant the petition for review, vacate the order, and remand to the BIA to give the IJ the opportunity to explain or bolster her analysis.
I. THE STREAMLINING REGULATIONS
In upholding the IJ's determination denying Dia relief from removal, the BIA did not issue an opinion, but, instead, issued an "affirmance without opinion" (AWO) under its streamlining regulations. See 8 C.F.R. § 3.1(a)(7) (2002). The streamlining regulations have recently been the subject of many unsuccessful attacks. See, e.g., Khattak v. Ashcroft, 332 F.3d 250, 253 (4th Cir. 2003) (rejecting the argument that the regulations are "impermissibly retroactive"); Albathani v. INS, 318 F.3d 365, 377 (1st Cir. 2003) (rejecting a due process challenge); Capital Area Immigrants' Rights Coalition v. United States Dep't of Justice, 264 F. Supp. 2d 14, 39 (D.D.C. 2003) (rejecting a challenge under the Administrative Procedure Act). Dia, with able support of amici, broadly attacks the streamlining regulations on two grounds: (1) as inconsistent with the INA; and (2) as violative of his due process rights.
The Supreme Court has " 'long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control.' " Fiallo v. Bell, 430 U.S. 787, 792 (1977) (quoting Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210 (1953)). With limited exceptions, Congress, in the INA, charges the Attorney General "with the administration and enforcement of [the INA] and other laws relating to the immigration and naturalization of aliens." 8 U.S.C. § 1103(a)(1) (2002). Pursuant to this power, Congress has mandated that the Attorney General "shall establish such regulations;... issue such instructions; and perform such other acts as he deems necessary for carrying out his authority under [the INA]." 8 U.S.C. § 1103(a)(3) (2002). Congress has further authorized that "[t]he Attorney General may provide by regulation for any other conditions or limitations on the consideration of an application for asylum not inconsistent with this Act." 8 U.S.C. § 1158(d)(5)(B) (2002).
The Attorney General has delegated to the BIA many of his responsibilities under the immigration laws, see 1 Charles Gordon, Stanley Mailman, & Stephen Yale-Loehr, Immigration Law and Procedure § 3.02 (rev. ed. 2003) (stating that the BIA "exercises so much of the Attorney General's authority under the immigration and nationality laws as the Attorney General may delegate to it"), and has further delegated supervision of the BIA to the Department of Justice's Executive Office of Immigration Review. Id. The BIA, established by regulation, has existed in various guises and has held various responsibilities since 1922. Id. at § 3.05. Initially, immigration laws were enforced by the Secretary of Labor, under whose supervision the administrative immigration appellate body was known as the "Board of Review." Id. After Congress transferred the responsibility for immigration enforcement to the Attorney General in 1940, the Board of Review was renamed the Board of Immigration Appeals. In its present form, the BIA has been described as "a quasi-judicial body with exclusively appellate functions." Id.
The Attorney General promulgated the streamlining regulations in 1999 when the Board was faced with a crushing caseload, the number of cases having increased exponentially in a little over a decade. See Executive Office of Immigration Review: Board of Immigration Appeals Streamlining, 64 Fed. Reg. 56,135, 56,136 (Oct. 18, 1999) (to be codified at 8 C.F.R. pt. 3). See generally Board of Immigration Appeals: Procedural Reforms to Improve Case Management, 67 Fed. Reg. 54,878, 54,878-79 (Aug. 26, 2002) (to be codified at 8 C.F.R. pt. 3). Under the regulations, "the Chairman [of the BIA] may designate certain categories of cases as suitable for review" by designated Board members "who are authorized to affirm decisions of Immigration Judges... without opinion." 8 C.F.R. § 3.1(a)(7)(i) (2002). The single BIA member to whom the case is assigned may affirm an IJ's decision in a single sentence without an opinion if he or she determines that the result was correct, and that "(A) the issue on appeal is squarely controlled by existing Board or federal court precedent and does not involve the application of precedent to a novel fact situation; or (B) the factual and legal questions raised on appeal are so insubstantial that three-Member review is not warranted." 8 C.F.R. § 3.1(a)(7)(ii) (2002).*fn2 Each AWO is exactly the same. It reads: "The Board affirms, without opinion, the results of the decision below. The decision is, therefore, the final agency determination. See 8 C.F.R. § 3.1(a)(7)(iii) (2002); see also Executive Office of Immigration Review: Board of Immigration Appeals Streamlining, 64 Fed. Reg. at 56,137-38 ("The decision rendered below will be the final agency decision for judicial review purposes.... [T]he Immigration Judge's decision becomes the decision reviewed."). Such an order does not necessarily imply approval of all of the reasoning of the IJ's decision, but does signify that the reviewing Board member considered that any errors by the IJ were harmless or immaterial. Id. If the single BIA member decides that the decision is inappropriate for affirmance without an opinion, the case is assigned to a three-member panel for review and decision. 8 C.F.R. § 3.1(a)(7)(iv) (2002). That panel, however, is also authorized to determine that a case should be affirmed without an opinion. Id.
B. Statutory and Regulatory Scheme
We are "confronted [with] questions implicating an agency's construction of the statute which it administers." INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999) (citation and internal quotation marks omitted). For this reason, we apply the principles of deference described in Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984). See Aguirre-Aguirre, 526 U.S. at 424 ("It is clear that principles of Chevron deference are applicable to this statutory scheme."). We initially ask whether "the statute is silent or ambiguous with respect to the specific issue" we confront. Chevron, 467 U.S. at 843. If it is, "the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id. at 843; see also Aguirre-Aguirre, 526 U.S. at 424. In doing so, we bear in mind that "judicial deference to the Executive Branch is especially appropriate in the immigration context where officials 'exercise especially sensitive political functions that implicate questions of foreign relations.' " Aguirre-Aguirre, 526 U.S. at 425 (quoting INS v. Abudu, 485 U.S. 94, 110 (1988)); see also Abdulrahman v. Ashcroft, 330 F.3d 587, 597 (3d Cir. 2003) (quoting this section of Aguirre-Aguirre ); Abdulai v. Ashcroft, 239 F.3d 542, 551 (3d Cir. 2001) (acknowledging "the narrow scope of our review" under such circumstances).
The streamlining regulations easily pass the first step of the Chevron inquiry. The INA "is silent... with respect to" streamlined administrative appeals. Chevron, 467 U.S. at 843. The next question is whether the streamlining of administrative appeals "is based on a permissible construction of the statute." Id. If, as Dia contends, the streamlining regulations are inconsistent with the INA, they certainly are not based on a permissible construction of the statute. So, we must look at what the INA says regarding the BIA in particular, and administrative appeals in general.*fn3 In so doing, we can discern nothing in the INA with which the streamlining regulations are inconsistent. See Abdulai, 239 F.3d at 555 ("[N]othing in the INA specifically requires the Board to explain its decisions."). In fact, the INA says nothing whatsoever regarding the procedures of an administrative appeal, or, for that matter, any other procedures employed by the BIA.
As Dia points out, the INA refers to the BIA in its "definitions" section, in connection with its definition of the term "order of deportation." *fn4 8 U.S.C. § 1101(a)(47)(A) (2002). The relevant provision reads, in pertinent part:
The ["order of deportation"] shall become final upon the earlier of (i) a determination by the Board of Immigration Appeals affirming such order; or (ii) the expiration of the period in which the alien is permitted to seek review of such order by the Board of Immigration Appeals.
8 U.S.C. § 1101(a)(47)(B) (2002). Under this provision, an order of deportation is not "final" until either the BIA has passed on it, or the time for seeking BIA review has expired. The statute also provides that the statutory right to judicial review of orders of deportation is only available for a "final order." 8 U.S.C. § 1252(b)(9) (2002); Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002). Based on these two provisions, Dia argues that the BIA at the relevant time was an entity provided for by statute, and no longer existed solely by regulation.
But even assuming that the BIA could not be eliminated without statutory authorization, we are hard pressed to conclude much more from the definitional statement at § 1101(a)(47)(B). It says absolutely nothing about procedures to be employed by the BIA, or the right to, or manner of, review generally; it only speaks to review by the BIA and its "affirming" the "order" of deportation. 8 U.S.C. § 1101(a)(47)(B). Based on the fact that § 1101(a)(47)(B) contains the only mention of the BIA in the INA, it seems clear that Congress has left all procedural aspects of the BIA, especially how it hears cases, entirely to the Attorney General's discretion. Id.
The statute's references to an "administrative appeal" do not alter this conclusion. Only two statutory provisions of the INA reference the term "administrative appeal." These provisions mandate that the procedure established for applying for asylum shall provide that —...
(iii) in the absence of exceptional circumstances, final administrative adjudication of the asylum application, not including administrative appeal, shall be completed within 180 days after the date an application is filed;
(iv) any administrative appeal shall be filed within 30 days of a decision granting or denying asylum, or within 30 days of the completion of removal proceedings before an immigration judge under section 1229a of this title, whichever is later.
8 U.S.C. § 1158(d)(5)(A)(iii) & (iv) (2002) (emphasis added). Although these provisions contemplate some type of an administrative appeal in connection with applications for asylum, they fail to provide any guidance as to the procedural trappings of that appeal.
Similarly unpersuasive is Dia's citation to 8 U.S.C. § 1229a(c)(4), which provides:
If the immigration judge decides that the alien is removable and orders the alien to be removed, the judge shall inform the alien of the right to appeal that decision and of the consequences for failure to depart under the order of removal, including civil and criminal penalties.
Id. (emphasis added). Even if we were to assume that this provision contemplates that an alien will have the opportunity for an administrative appeal, neither this provision nor any other provision of the INA references the procedural requirements of an administrative appeal or outlines a scheme inconsistent with the streamlining regulations. Instead, it only speaks generally of an "administrative appeal" and "the right to appeal," and of the BIA only in the context of a "final" order. To conclude from this language in the INA that the streamlining regulations are not a "permissible construction of the statute" under Chevron, 467 U.S. at 843, would require a sizable leap that we cannot make. The Supreme Court has forcefully emphasized that "[a]bsent constitutional constraints or extremely compelling circumstances the administrative agencies should be free to fashion their own rules of procedure and to pursue methods of inquiry capable of permitting them to discharge their multitudinous duties." Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 543 (1978) (citation and internal quotation marks omitted). This "basic tenet of administrative law," id., has even more force in the immigration context where our deference is especially great. See Abdulai, 239 F.3d at 552 ("In light of the INA's enormously broad delegation to the Attorney General, we would be extremely reluctant to hold that his interpretation is unreasonable."); see also 1 Gordon, Mailman, & Yale-Loehr, Immigration Law and Procedure § 3.02 ("[T]he theory of the [INA] is that all responsibility to enforce or administer the immigration laws is vested in the Attorney General, and that she may delegate or assign any of such powers in any manner she deems appropriate."). We therefore hold that, in promulgating the streamlining regulations, the Attorney General did not run afoul of the INA.*fn5
C. Constitutional Challenges
Dia next attacks the streamlining regulations as a deprivation of his constitutional right to due process under the Fifth Amendment.*fn6 See U.S. Const. amend. V. We have plenary review over constitutional challenges to immigration procedures. Abdulrahman, 330 F.3d at 597.
We agree with our sister courts of appeals that have passed on this issue and conclude that the streamlining regulations do not violate the Due Process Clause of the Constitution. See Denko v. INS, 2003 WL 22879815, at *8 (6th Cir. Dec. 8, 2003); Falcon Carriche v. Ashcroft, 2003 WL 22770121, at *3 (9th Cir. Nov. 24, 2003); Georgis v. Ashcroft, 328 F.3d 962, 967 (7th Cir. 2003); Mendoza v. United States Att'y Gen., 327 F.3d 1283, 1288 (11th Cir. 2003); Soadjede v. Ashcroft, 324 F.3d 830 (5th Cir. 2003); Albathani, 318 F.3d at 377.
The basic elements of due process in this context are clear. Although "the Fifth Amendment entitles aliens to due process of law in deportation proceedings," Reno v. Flores, 507 U.S. 292, 306 (1993), due process is "flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481 (1972); see also Marincas v. Lewis, 92 F.3d 195, 203 (3d Cir. 1996) ("Precisely what minimum procedures are due under a statutory right depends on the circumstances of the particular situation."). The due process afforded aliens stems from those statutory rights granted by Congress and the principle that "[m]inimum due process rights attach to statutory rights." Marincas, 92 F.3d at 203; see also Meachum v. Fano, 427 U.S. 215, 226 (1976). Our concern, then, is whether the streamlining regulations afford aliens such as Dia their minimum due process rights. See Albathani, 318 F.3d at 375 (stating that an unadmitted alien present in the United States has only "limited" due process rights); see also Anwar v. INS, 116 F.3d 140, 144 (5th Cir. 1997) ("Due process challenges to deportation proceedings require an initial showing of substantial prejudice."). In making this assessment, we look to see if the process at issue fits with the notion that "[t]he fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner." Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (citation and internal quotation marks omitted) (emphasis added).
Dia bases his primary due process argument on statements we made in Abdulai, where we expounded on this " 'fundamental requirement of due process' " articulated in Mathews. Abdulai, 239 F.3d at 549 (quoting Mathews, 424 U.S. at 333). In Abdulai, the BIA had issued a two-page per curiam opinion that contained a "terse" application of Board precedent to the specific facts of Abdulai's case. Id. at 547. Abdulai argued, inter alia, that in so doing, "the BIA denied him due process by failing to make an individualized determination of his interests." Id. at 549.
We began our analysis of Abdulai's due process argument by noting that, in the context of the adjudication of claims for relief from removal such as the one before us, due process "requires three things." Id. at 555. "An alien: (1) is entitled to 'factfinding based on a record produced before the decisionmaker and disclosed to' him or her; (2) must be allowed to make arguments on his or her own behalf; and (3) has the right to 'an individualized determination of his [or her] interests.' " Id. (quoting Llana-Castellon v. INS, 16 F.3d 1093, 1096 (10th Cir. 1994) (citation omitted)). Of these three requirements, Abdulai dealt solely with the third requirement, an "individualized determination." In turn, Dia contends that, by issuing an AWO pursuant to the streamlining regulations, the BIA deprived him of his due process right to an "individualized determination" of his interest as that right was recognized in Abdulai.
Although we ultimately concluded in Abdulai that there was no due process violation because we found that the BIA had in fact made an "individualized determination" of Abdulai's application, id. at 550, Dia seizes on what we said as we reasoned toward that conclusion. One such comment was that we had previously "suggested that the BIA denies due process to an alien when it 'act[s] as a mere rubberstamp.' " Id. (quoting Marincas, 92 F.3d at 202 n.7). We also noted that "the question for due process... is simply whether the Board made an individualized determination of Abdulai's interests." Id. (emphasis added). Dia argues that these observations require that we invalidate the streamlining regulations.
Dia, however, takes our statements in Abdulai out of context. We made those statements in connection with Abdulai's argument that the BIA had not "acknowledg[ed] or address[ed] any of his arguments." Id. at 549. In Abdulai, we necessarily reviewed the BIA's opinion, because the BIA had issued an opinion and the petitioner focused his arguments on that opinion. Id. at 548. We therefore made the statements in Abdulai in the context of a situation in which the BIA had chosen to speak — thus forcing the reviewing court to examine the BIA's reasoning — but had done so in a way that caused us to question whether the BIA had carefully reviewed the specific matter before it. See Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997) ("We have authority to review only an order of the BIA, not the IJ, unless the IJ's decision has some impact on the BIA's decision."). The situation here is very different; the BIA did not opine on its own, but, instead, referred us to the IJ's decision.
Contrary to Dia's suggestion, in Abdulai we did not impose a requirement that in all instances the BIA must indicate that it made an individualized determination of the claim for relief. In fact, we noted our approval of decisions of other courts of appeals that have upheld the BIA's right to " 'simply state that it affirms the IJ's decision for the reasons set forth in that decision.' " Abdulai, 239 F.3d at 549 n.2 (quoting Chen v. INS, 87 F.3d 5, 7 (1st Cir. 1996)). We also made clear that "[t]here are some situations in which a court of appeals effectively reviews an IJ's decision, but [that Abdulai's was] not one of them." Id. One of those situations arises, we noted, when the BIA "defers" to the IJ. Id. In that situation, "a reviewing court must, as a matter of logic, review the IJ's decision to assess whether the BIA's decision to defer was appropriate." Id.; see also Abdulrahman, 330 F.3d at 591. And so, here, where the BIA directs us to the opinion and decision of the IJ who originally assessed Dia's application, we review the IJ's opinion.
Dia, nonetheless, also insists that the streamlining regulations violate his right to an "individualized determination" because they specifically state that an AWO does not necessarily imply approval of all of the reasoning of the IJ's decision. See 8 C.F.R. § 3.1(a)(7)(iii) (2002). But he fails to articulate why or how this is so. We are unaware of any requirement, let alone any constitutional requirement, that an agency adjudicator must commit to writing or otherwise verbalize his or her reasoning, where, as here, the agency has directed us to an opinion for review. In Dia's case, the due process right to an "individualized determination" was accorded to Dia at the IJ level, where the IJ "reasoned" her decision, and the BIA gave the result its imprimatur pursuant to its regulations. Certainly, the BIA could have articulated its reasons for affirming the IJ's order, but just because it had the power to do so, does not mean the Constitution required it to exercise that power.*fn7 See Abdulai, 239 F.3d at 549 n.3 ("Having the power to do something and being required to do it are not the same thing.").
Equally unavailing is amici 's argument that "fundamental rule[s] of administrative law" enunciated by the Supreme Court in SEC v. Chenery Corp., 332 U.S. 194, 196-97 (1947), support Dia's argument that the BIA's failure to adopt the reasoning of the IJ, in accordance with the streamlining regulations, violated his constitutional right to due process. In fact, we believe that Chenery actually supports the opposite conclusion. In Chenery, the Court emphasized a "simple but fundamental rule of administrative law... that a reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency." Id. at 196 (emphasis added). The "corollary" of this rule is that the basis of an administrative action "must be set forth with such clarity as to be understandable." Id. The Court therein was concerned with ensuring that a reviewing court may "test" administrative action. Id. Under the streamlining regulations, this requirement is met. The BIA clearly "invokes" the IJ's opinion as the grounds on which the agency's decision rests; we thus "judge the propriety" of the IJ's action in order to "test" the agency's action. As the Court of Appeals for the First Circuit said:
[Petitioner and Amici ] both overlook the plain language of Chenery, which refers to agencies in their entirety, not individual components of agencies. Here, the relevant agency — the INS — has presented a statement of reasons for its decision, albeit from the IJ rather than the BIA. Chenery does not require that this statement come from the BIA rather than the IJ.
Albathani, 318 F.3d at 377; see also Nagi El Moraghy v. Ashcroft, 331 F.3d 195, 206 (1st Cir. 2003) ("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, and the AWO procedure did not prevent there being meaningful review." (citation omitted)); Dominguez v. Ashcroft, 336 F.3d 678, 680 (8th Cir. 2003) (stating that "the opinion of the immigration judge is sufficient to satisfy th[e] requirement" in Chenery Corp. that "an agency must set out the basis of its decision").
Dia asserts three other ways in which the AWO violated his due process right: it denied him "meaningful review"; it prevented our court from providing meaningful review; and it was not "fair." Although Dia does not match these due process arguments with any of the three-requirements for due process we outlined in Abdulai, they appear to be variations on his theme that the issuance of an AWO denied him of his right to an "individualized determination." Regardless of their label, we reject these contentions as well.
Dia's claim that the AWO denied him his so-called "due process right to meaningful review" lacks substance. Dia specifically maintains that he has the right to meaningful review by the BIA. Other than pointing generally to the Due Process Clause, however, Dia does not identify the source of this alleged right. We are unaware of any authority supporting a due process right to "meaningful review" by an administrative appellate body.
The "right to meaningful review" that Dia alleges is clearly distinguished from "[t]he fundamental requirement of due process [that] is the opportunity to be heard at a meaningful time and in a meaningful manner," Mathews, 424 U.S. at 333, that we discussed above. The "meaningfulness" requirement of Mathews pertains to "the opportunity to be heard" and the "manner" in which one is heard, not to a review by an administrative appellate body. Id. Moreover, any recognized right to "meaningful review," as we note more fully in the margin, has been confined to the context of review by federal courts, and not extended to review by an administrative appellate body.*fn8 See also, e.g., Awolesi v. Ashcroft, 341 F.3d 227, 232 (3d Cir. 2003) ("In order for us to be able to give meaningful review to the BIA's decision, we must have some insight into its reasoning."); Kayembe v. Ashcroft, 334 F.3d 231, 238 (3d Cir. 2003) ("When deficiencies in the BIA's decision make it impossible for us to meaningfully review its decision, we must vacate that decision and remand so that the BIA can further explain its reasoning."). Quite clearly, "[a]n alien has no constitutional right to any administrative appeal at all," Albathani, 318 F.3d at 376; see also Guentchev v. INS, 77 F.3d 1036, 1037 (7th Cir. 1996), and, therefore, no constitutional right to a "meaningful" administrative appeal.
Nor are we persuaded by Dia's related argument that the streamlining regulations — or, their "opaque" nature, as amici describe them — prevent us as a court of appeals from engaging in a meaningful review of the agency's actions. See Simmons v. Beyer, 44 F.3d 1160, 1169 (3d Cir. 1995) (stating that due process requires that a guaranteed "appellate procedure must furnish the components necessary for meaningful review"). We cannot agree with amici 's claim that "the summary affirmance process impermissibly strips the federal courts of the ability to properly review critical agency action." The streamlining regulations in no way restrict our ability to review the agency's denial of relief from removal. An agency, not a particular administrative appellate body, must set forth the basis for its order with sufficient specificity to permit meaningful review by this court. See Albathani, 318 F.3d at 377. Here, as we discuss in the next section, we have no doubt as to the basis for the agency's decision as put forth for review by the BIA. The BIA presents for our review the reasoning and decision of the IJ as that of the Attorney General. See Executive Office of Immigration Review: Board of Immigration Appeals Streamlining, 64 Fed. Reg. at 56,137-38.
All that is required for our meaningful review is that the agency — as represented by an opinion of the BIA or IJ — put forth a sufficiently reasoned opinion. See Mendoza, 327 F.3d at 1289 ("[T]he meaningful review of the INS's removability determination is not precluded by the brevity of the BIA's summary affirmance decision because an appellate court 'will continue to have the IJ's decision and the record upon which it is based available for review.' " (quoting Albathani, 318 F.3d at 377)). While in many instances knowing the BIA's reasoning might prove helpful to our review, the BIA's failure to express it does not amount to a constitutional violation. Neither the Constitution nor Congress guarantee a de novo review by the BIA, Abdulai, 239 F.3d at 549 n.3, nor do they guarantee a right to a fully reasoned opinion by the BIA. And, as we have noted, we see no constitutional significance in the fact that an AWO does not necessarily imply approval of all of the reasoning of the IJ. We are able to meaningfully review the final determination of the agency, and, in this context, that is all that due process requires.
We are similarly unmoved by Dia's argument that the streamlining regulations violate basic due process requirements of "fairness." See Bridges v. Wixon, 326 U.S. 135, 154 (1945) ("Meticulous care must be exercised lest the procedure by which he is deprived of that liberty not meet the essential standards of fairness."). We have made clear that "[w]hen Congress directs an agency to establish a procedure,... it can be assumed that Congress intends that procedure to be a fair one." Marincas, 92 F.3d at 203. What is "fair" within the context of immigration proceedings, however, need not always measure up to the requirements of fairness in other contexts, especially because "[a]liens only have those statutory rights granted by Congress." Id.; see also Mathews v. Diaz, 426 U.S. 67, 79-80 (1976) ("In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens.").
We find nothing "unfair" in a constitutional sense about the INS's streamlining procedures. An applicant retains a full and fair opportunity to make his case to the IJ, and has a right to review of that decision by the BIA, and then by a court of appeals. See Guentchev, 77 F.3d at 1038 ("The combination of a reasoned decision by an administrative law judge plus review in a UNITED STATES COURT OF APPEALS satisfies constitutional requirements."); cf. Zubeda, 333 F.3d at 480 ("Justice requires that an applicant for asylum or withholding of deportation be afforded a meaningful opportunity to establish his or her claim."); Abdulrahman, 330 F.3d at 596 (stating that an alien threatened with deportation has a right to a "full and fair hearing"). The fact that the review is done by one member of the BIA and that the decision is not accompanied by a fully reasoned BIA decision may be less desirable from the petitioner's point of view, but it does not make the process constitutionally "unfair." Neither Dia nor amici has provided any reason for us to conclude otherwise.
Our dissenting colleagues who disagree on this point would strike down the regulations, contending that they alter an established administrative scheme under the INA. However, upon further scrutiny, it becomes clear that Judge Stapleton is not really taking issue with the regulations as a perversion of the statute or even agency practice, but rather as a violation of principles of judicial review that we have espoused in our case law.*fn9 Admittedly, the regulations will cause us to review cases affirmed by the Board without opinion. But, they do not force us to venture "through the looking glass" (like Alice in Wonderland), because we have the IJ's reasoning and the record necessary to exercise our function of review. We have always required that the review process be a meaningful one, aided by a reasoned opinion from the agency.*fn10 We do not today cast that principle aside. Rather, we hold that when the issue before us is the validity of an agency's regulations establishing its procedures, unless they violate Congressional dictates or give rise to a due process violation, the regulations must stand, especially where, as here, Congress has specifically delegated the power to establish procedures by regulation.*fn11
Furthermore, Judge Stapleton's dissent focuses on a perceived "inability to review" in the abstract, doing a disservice to, and seemingly ignoring, what we have done and will continue to do in reviewing, in a meaningful manner, the cases that come to us from the BIA. When, after scouring the record, we are still unable to determine the agency's reasoning, we have remanded to the BIA for further explanation.*fn12 In actuality, these regulations do not prevent us from adhering to the very principles that Judge Stapleton's dissent contends are being abandoned. Today we face no such "inability to review" in this case, as we can clearly review, and are reviewing, what the agency did without the aid of the BIA's particular take on the matter.*fn13
Thus, there is no basis for a blanket declaration of invalidity, or a declaration that the regulations are invalid as applied here.
Accordingly, we hold that the Attorney General's implementation of the streamlining regulations and the BIA's issuance of an AWO in this case did not violate either the INA or the Constitution.
II. THE AGENCY'S DENIAL OF RELIEF
We now turn to Dia's substantive attack on the Attorney General's denial of his claim for relief from removal. As outlined above, when the BIA issues an AWO under the streamlining regulations, we review the IJ's opinion and scrutinize its reasoning. Because Dia's credibility was the basis on which the IJ rested her decision to deny relief, the sole issue before us is that credibility determination. In addressing this issue, we first will detail Dia's testimony before the IJ, augmenting it with details from the administrative record. We then will discuss our standard of review. Lastly, we will apply that standard of review to the IJ's opinion, explaining why we must vacate it.
Dia, an ethnic Fula, was born in Selouma, Dinguiraye, Guinea. He has had only two years of education, has a limited ability to read and write, and does not speak English. He joined the Rassemblement du Peuple de Guineé ("Rally of the People of Guinea Party" or "RPG") in 1998, at the age of twenty-two. His father had been a member of the RPG before his death in 1997. Dia worked in the field rallying support for RPG's imprisoned leader, Alpha Conde — a member of parliament and a candidate in the 1998 presidential election — and monitored voting polls to help prevent election fraud. The Country Report for Guinea assembled by the U.S. Department of State — included in the administrative record — reveals a country in a state of turmoil. Guinea's political system appears "deeply flawed" and its human rights record even worse. See U.S. Department of State, 2000 Country Reports on Human Rights Practices: Guinea (Feb. 2001) (hereinafter "Country Report"). The Country Report states:
The Government's human rights record was poor; although there were some improvements in a few areas serious problems remained in others. The Government's tight and sometimes partisan control of the electoral process both in the 1998 presidential election and the deeply flawed June municipal elections; its refusal to create an independent electoral oversight mechanism; and its prohibition of non-governmental broadcast media, effectively restricted citizens' right to change their government. Major human rights abuses include: Extra-judicial killings; disappearances; use of torture, beatings and rape by police and military personnel; and police abuse of prisoners and detainees. Soldiers, police, and civilian militia groups killed, beat, and raped citizens, as well as refugees from Sierra Leone and Liberia. Security forces used arbitrary arrest and detention. Members of the security forces committed abuses with impunity.... Violence and societal discrimination against women, prostitution of young girls, female genital mutilation (FGM), ethnic discrimination and interethnic violence, child labor, reports of trafficking of women and children, and vigilante actions by victims or others persisted.
Id. This report is important because the picture it paints provides a background against which to assess Dia's credibility. See Nagi El Moraghy, 331 F.3d at 204 (stating that State Department reports "provide a context for assessing the credibility of a petitioner's case..., depending on whether or not they corroborate the petitioner's tale"); see also Zubeda, 333 F.3d at 477 ("Official as well as unofficial country reports are probative evidence and can, by themselves, provide sufficient proof to sustain an alien's burden under the INA.").
Dia testified that the problems that directly affected him began on November 22, 2000. At that time, he was approached in his home in Nzerekore, Guinea, by a man named Bangora, who was the chief of his neighborhood, and two other men, who asked him to join the Guinean military to fight Liberian and Sierra Leonean rebels fighting in Guinea. When Dia refused to join the military, Bangora and the other men accused Dia of sympathizing with the rebels. Dia testified that he refused to join the military because members of the military had killed his father and he feared they wanted to kill him as well.*fn14 He also testified that the three men associated the RPG with the rebels, knew that Dia belonged to the RPG, and "wanted to create some problems for [him] so that they could accuse [him] of something." He told the IJ that he believed that Bangora and the two men knew he would not join them because members of the RPG, such as Dia, oppose the government and, thus, refuse to give it aid.
Later that day, Dia, concerned for his welfare, went to his uncle's home outside of town to seek advice. Apparently, his uncle was not at his home and Dia waited three days until his uncle finally returned. After the two consulted, Dia's uncle agreed to return with Dia to town to talk to Bangora. When they arrived, Dia discovered his home burned to the ground.*fn15 Eventually, he found his wife, who was bruised, and daughter at his in-laws' home. In response to questions about her bruises, Dia's wife told him that, on November 24, about twenty-five military men had come to their home searching for Dia, and, upon finding that Dia was not home and hearing Dia's wife's claim not to know where Dia was, the men beat and raped her and burned the house. The men told his wife that Dia was aiding the rebels so that Conde could be released. After consulting with his wife who pled with him to flee the country, Dia decided not to talk with Bangora and to flee from the village, leaving her and their child behind.
For four months, Dia remained in Guinea, living at the home of his friend, Abdoulaye Sow.*fn16 Sow eventually made arrangements for Dia to secure a new Guinean passport and a U.S. visa with his "friend who was a person who ma[de] arrangement[s] for people who want to travel." Dia gave the man his old passport and six photographs. Dia did not learn either the man's name or how the man procured the documents. The man told Dia to tell U.S. immigration officials that he went to work in Italy as a "tomato picker" and was on his way to Honduras to work on a ship. The man gave Dia a new Guinean passport, a U.S. visa, "a letter packet" ostensibly supporting the story that he worked in Italy, and an airline ticket. Dia paid the man 2 million Guinean francs (about $1000 U.S.). Dia also secured the services of a Guinean policeman to help him pass through the police roadblocks. Dia paid that officer 300,000 Guinean francs (about $150 U.S.).
Upon his arrival in the U.S., Dia attempted to enter the country using the story that the smuggler recommended. The INS official, noticing that Dia did not have a ticket to go to Honduras, did not believe his story. The INS then sought to remove Dia. Dia conceded removability, but sought relief from deportation based on asylum, withholding of removal, and relief under the CAT. Dia was twenty-six years old at the time of his hearing before the IJ. Represented by counsel, and speaking in Fulani through an interpreter, he testified at the hearing and called a handwriting expert to support his story that the visa and passport did not contain his handwriting. The IJ issued a written opinion, denying relief because she found that Dia was not credible. As mentioned, the BIA, through a single member of the Board, affirmed without opinion pursuant to 8 C.F.R. § 3.1(a)(7) (2002).
B. Burden and Standard of Review
An alien has the burden of supporting his claim for relief from removal. An alien's credibility, by itself, may satisfy his burden, or doom his claim. Gao, 299 F.3d at 272 ("Aliens have the burden of supporting their asylum claims through credible testimony. Testimony, by itself, is sufficient to meet this burden, if 'credible.' " (quoting 8 C.F.R. § 208.13(a)) (citation omitted)); see also Mulanga v. Ashcroft, 2003 WL 22683042, at *7 (3d Cir. Nov. 14, 2003) (stating that an applicant's credible testimony "may be sufficient to sustain the burden of proof without corroboration"). The IJ here concluded that Dia was not credible based on "the inconsistencies in Dia's testimony and its overall implausibility." This adverse credibility determination — fatal to Dia's claim — was a finding of fact. See Gao, 299 F.3d at ...