June 17, 2019
Petition for Review from an Order of the Board of Immigration
Appeals (Agency No. A205-947-666) Immigration Judge: Roxanne
Anderson [ARGUED] University of Pennsylvania Joseph P. Archie
Nicolas A. Novy Dechert Counsel for Petitioner
Jennifer R. Khouri [ARGUED] Tim Ramnitz Chad A. Readler,
Acting Assistant Attorney General United States Department of
Before: AMBRO, RESTREPO and FISHER, Circuit Judges.
FISHER, CIRCUIT JUDGE.
Immigration Judge (IJ) decided, and the Board of Immigration
Appeals (BIA) agreed, that Petitioner Ayub Luziga is
ineligible for withholding of removal under the Immigration
and Nationality Act (INA) and the Convention Against Torture
(CAT) because he was convicted of a "particularly
serious crime," and that he is not entitled to deferral
of removal under the CAT because he failed to carry his
burden of proof. Luziga requests our review, arguing that the
IJ and BIA made two legal errors. First, Luziga argues that
the IJ and BIA misapplied the framework for making
particularly serious crime determinations, a framework the
BIA itself has established in its precedential opinions.
Second, Luziga argues that the IJ failed to observe the rule
we articulated in Abdulai v. Ashcroft, 239 F.3d 542,
554 (3d Cir. 2001), requiring immigration judges to notify a
noncitizen in removal proceedings that he is expected to
present corroborating evidence before finding that failure to
present such evidence undermines his claim. We agree that the
IJ and BIA erred in these respects; therefore, we will grant
Luziga's petition for review, vacate the underlying
order, and remand.
Luziga, a native of Tanzania, was lawfully admitted to the
United States as a visitor twenty years ago. He later applied
and was approved for a student visa but eventually fell out
of lawful status. In 2014, he was arrested and indicted for
wire fraud in violation of 18 U.S.C. § 1343 and
conspiracy to commit the same in violation of 18 U.S.C.
§ 1349. The Government alleged that from 2007 to 2008,
Luziga, his then-wife, Annika Boas,  and fellow Tanzanians
conspired to "fraudulently secure residential mortgage
loans funded by federally-insured financial institutions by
causing materially false statements to be made during the
loan application and approval process." Certified
Administrative Record (C.A.R.) 1026-28.
pleaded guilty to the conspiracy charge and was sentenced to
twenty-one months' imprisonment. His conduct caused
losses between $400, 000 and $1, 000, 000, and he personally
received checks totaling at least $54, 863.11. He was ordered
to pay restitution of almost $1, 000, 000.
cooperated in the investigation of his co-conspirators and
testified against his wife, who was convicted and sentenced
to twenty-seven months' imprisonment. While Luziga
prepared to testify, prosecutors asked him about the location
of Mrisho Nzese, who had been convicted for his role in the
conspiracy but fled the country. They also wanted Luziga to
ask his stepfather, a police commissioner and the chief of
INTERPOL in East Africa, to help return Nzese to the United
States. News of the investigation and Luziga's
cooperation with prosecutors spread through the Tanzanian
community in the United States and abroad.
Luziga was serving his sentence, the Department of Homeland
Security (DHS) ordered him removed by final administrative
order. See 8 U.S.C. § 1228(b). However, because
Luziga expressed a reasonable fear of returning to Tanzania,
DHS referred him to the Executive Office for Immigration
Review (EOIR) for removal proceedings, where he requested
withholding of removal under the INA and the CAT, and
deferral of removal under the CAT. See 8 C.F.R.
§ 208.31. At Luziga's individual hearing,
IJ heard part of his testimony before deciding that his
conspiracy conviction was a conviction for a particularly
serious crime, making him ineligible for withholding of
removal under the INA, 8 U.S.C. § 1231(b)(3)(B)(ii), and
the CAT, 8 C.F.R. § 1208.16(d)(2). The IJ allowed the
hearing to proceed on the issue of deferral of removal under
support of his request for deferral of removal, Luziga
explained that he feared torture and testified that his
parents-in-law threatened to "make sure that [he]
suffer[s]" in Tanzania and said he "would never
even survive a day in Africa." C.A.R. 472-73. Luziga
understood this to mean that they would kill him. Nzese, the
co-conspirator who had fled the United States, made similar
threats. Luziga learned of Nzese's threats from two
sources. First, he received a letter from a friend reporting
that "the other guy who went [to Tanzania]," who
Luziga believed to be Nzese, blamed Luziga for trying to
bring him back to the United States. C.A.R. 509-10, 974.
Second, a friend of his then-wife who "[hung] out [at] a
lot of parties in Tanzania" with Nzese, C.A.R. 501,
wrote to Luziga warning him of Nzese's threats.
Annika's friend also testified telephonically in support
of Luziga's request for relief from removal.
testified that his parents-in-law and Nzese could act on
threats with assistance from Tanzanian officials, or at least
with impunity. He claimed that Nzese is the nephew of
Tanzania's former president. And he believed that his
father-in-law, Nicholas Boas, knew "top level"
officials through his work. C.A.R. 477. Luziga believed that
another co-conspirator's father was a retired general.
Luziga testified that, in his experience, connections with
Tanzanian officials shield perpetrators of violence from
criminal culpability. He described a time when his friend,
whose grandfather was a member of parliament, shot a bus
driver without any criminal consequence. Luziga feared that
his parents-in-law and Nzese could do the same to him. Though
his own stepfather occupied a position of prominence, Luziga
feared this would not suffice to protect him due to his
stepfather's fragile health and waning influence, among
found that Luziga testified in a "forthright and frank
fashion," C.A.R. 445, and made no adverse credibility
determination. In the absence of an explicit adverse
credibility determination, we assume that the noncitizen
testified credibly. Camara v. Att'y Gen., 580
F.3d 196, 201 (3d Cir. 2009).
also presented the testimony of an expert witness, Professor
Ned Bertz, an associate professor at the University of Hawaii
with expertise in Tanzanian "history . . .
encompass[ing] politics[, ] culture[, ] religion[, ]
ethnicity[, ] and current events, as well as issues of crime
[and] violence." C.A.R. 521-22. Professor Bertz
validated Luziga's fears, testifying that in Tanzania
"[p]eople with government contacts have the ability . .
. to enact violence against other individuals if they so
choose." C.A.R. 530. And while Professor Bertz could not
verify the alleged connection between Nzese and the former
president, he confirmed that the former president was
directly involved in the selection of the current president
and that Nzese appeared to be an influential member of the
same political party.
the close of evidence and counsel's final remarks, the IJ
announced her opinion and decision. She first addressed her
particularly serious crime determination, explaining that
Luziga's conviction for participation in a fraud scheme
that resulted in losses of nearly $1, 000, 000 constituted a
particularly serious crime under Third Circuit precedent and
calling Luziga's criminal pre-sentencing report
"quite dispositive." C.A.R. 432-33. She accordingly
found Luziga ineligible for withholding of removal under the
INA and the CAT and pretermitted those applications.
Luziga's request for deferral of removal, the IJ decided
that Luziga had not carried his burden of proof. She accepted
that there had been threats against him, but highlighted what
she saw as shortcomings in his evidence. She said there was
"absolutely no showing whatsoever that either Mrisho
Nzese or [Luziga]'s parents-in-law have the capacity
somehow to cause [his] torture." C.A.R. 446. She stated
there was "no proof" that Luziga's
parents-in-law and Nzese had government connections:
"[O]ther than one individual so opining, and [Luziga]
also opining that [Nzese] is the nephew of the ex-president[,
] . . . [t]here is no independent corroborative information
supplied on this issue, and that causes the issue to fail
under the burden of proof standard." Id. Even
assuming Luziga's co-conspirators' government
connections, she found that Luziga did not satisfy his burden
of proof on the nexus between torture and government action
or culpable inaction because "the suggestion that the
ex-president would . . . do something unlawful to vindicate
 Nzese, is supported by nothing at all on the record other
than some opining by [the] expert . . . and [Luziga]'s
own opinions about that"; and "there is nothing to
substantiate" that Luziga's parents-in-law could
torture him with the acquiescence of the government. C.A.R.
446-47. Finally, she found that "[t]here is absolutely
nothing to substantiate [Luziga]'s contention that his
own stepfather . . . would be unable to protect [him]."
C.A.R. 447. The IJ found these failures of proof dispositive
of Luziga's claim.
appealed to the BIA and argued that the IJ erred in her
particularly serious crime determination because, while
precedent requires a two-step analysis, the IJ had
"skipped the preliminary step to determine whether the
elements of federal wire fraud bring 'the crime into a
category of particularly serious crimes.'" C.A.R. 28
(citing In re N-A-M-, 24 I. & N. Dec. 336, 342
(B.I.A. 2007)). He also argued that the IJ clearly erred in
finding that he had failed to present corroborating evidence,
erroneously required corroborating evidence when he had
credibly testified to the details of his claim, and failed to
find that additional corroborating evidence was readily
available such that its absence could be held against him.
agreed with the IJ and dismissed the appeal. To the IJ's
particularly serious crime determination, it added that the
IJ applied the correct legal standard and that "the
nature of [Luziga]'s crime, as measured by the elements
of the offense, i.e., participation in a scheme to defraud
victims of nearly $1, 000, 000, brings [his] crime within the
range of a particularly serious offense" under BIA and
Third Circuit precedent. C.A.R. 2-3. Thus, the BIA held that
the IJ "properly considered the nature and scope of
[Luziga's] crime, the sentence imposed, and the