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Case Name:LADHA V INS
Case Number:	Date Filed:
98-70772	06/01/00
 

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SHABANALI LADHA; KHATOON
                                                     No. 98-70772
LADHA; FARZANA S. LADHA,
                                                     I&NS Nos.
Petitioners,
                                                     A70-804-909
v.
                                                     A70-804-910
IMMIGRATION AND NATURALIZATION
                                                     A70-804-912
SERVICE,
                                                     OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted February 8, 2000*
Pasadena, California

Filed June 1, 2000

Before: Harry Pregerson and Kim McLane Wardlaw,
Circuit Judges, and Milton I. Shadur, District Judge.**

Opinion by Judge Wardlaw

_________________________________________________________________
*The panel finds this case appropriate for submission without oral argu-
ment pursuant to Fed. R. App. P. 34(a).
**The Honorable Milton I. Shadur, United States District Judge for the
Northern District of Illinois, sitting by designation.
                               5695





Immigration/Deportation and Asylum


Shabanali Ladha, his wife and daughter, were Pakistani
nationals and citizens. The Ladhas belonged to the Khoja
community, a small sect within the minority Shia branch of
the Muslim population. Relations between the Shia Muslims
and the majority Sunni Muslims were unstable. When the
Immigration and Naturalization Service (INS) charged the
Ladhas with being deportable, they sought asylum, based on
allegations of political, religious, and social group persecu-
tion, and withholding of deportation. At the hearing, Ladha
testified that because he was the chief priest over six Khoja
churches and supported the Mohajir Quami Movement, he
and his family had been abused by Sunni fundamentalists.
The Ladhas testified to three incidents of physical violence
and threats against them at the hands of Sunni fundamental-
ists: their church was attacked and Ladha was slapped; they
were beaten and threatened at the shops; and, invaders
assaulted them in their home. The State Department Profile
provided information supporting the claims of the Ladhas,
and the daughter specifically testified that despite a recent
change in political power, part of the hostile Sunni party was
still in power.

The immigration judge (IJ) rejected the Ladhas' asylum
and withholding of deportation claims, granting them volun-
tary departure. The IJ also excluded a letter from Mr. Ladha's
brother and a document from Mr. Ladha's church. The BIA
denied their petition for review, finding that, even assuming

                               5696


their testimony was credible, they had failed to provide cor-
roborative evidence of their testimony.

[1] A "refugee" under the Immigration and Nationality Act
(INA) is an alien who is unwilling to return to his or her coun-
try of origin because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, member-
ship in a particular social group, or political opinion. Persecu-
tion means the infliction of suffering or harm upon those who
differ in a way regarded as offensive. Persecution cognizable
under the Act can emanate from sections of the population
that do not accept the laws of the country at issue, sections
that the government of that country is either unable or unwill-
ing to control.

[2] To establish a well-founded fear of persecution, peti-
tioners had to show their fear to be both objectively reason-
able and subjectively genuine. An alien satisfies the
subjective component by credibly testifying that he or she
genuinely fears persecution. The objective component can be
established by (1) proving past persecution, which gives rise
to a rebuttable presumption that a well-founded fear of future
persecution exists, or (2) by showing a reasonable fear of
future persecution through credible, direct, and specific evi-
dence in the record. The objective requirement can be met
either through the production of specific documentary evi-
dence or by credible and persuasive testimony.

[3] An alien is entitled to withholding of deportation if the
evidence demonstrates a clear probability that the applicant
would be persecuted if deported to the home country on
account of one of the five enumerated factors upon return. A
rebuttable presumption of entitlement to withholding of
deportation arises when an applicant shows that his life or
freedom was threatened in his home country on account of a
protected ground. The Attorney General has no discretion to
deny withholding of deportation to eligible aliens.

                               5697


[4] At the time of the Ladhas' hearing, INS regulations pro-
vided that the testimony of the applicant, if credible, may be
sufficient to sustain the burden of proof without corrobora-
tion. The BIA requirement of the corroboration of credible
evidence, under some circumstances, [5]  was unequivocally
contrary to the rule in the Ninth Circuit of the court of
appeals.

[6] Authentic refugees are rarely able to offer direct corrob-
oration of specific threats. [7] Other facts that serve as the
basis for an asylum or withholding claim can be shown by
credible testimony alone if corroborative evidence is unavail-
able. [8] When an alien credibly testifies to certain facts, those
facts are deemed true, and the question remaining to be
answered becomes whether these facts, and their reasonable
inferences, satisfy the elements of the claim for relief. No fur-
ther corroboration is required. [9] An alien's testimony, if
unrefuted and credible, direct and specific, is sufficient to
establish the facts testified to without the need for any corrob-
oration.

[10] As the Ladhas' testimony was credible, they were eli-
gible for asylum on account of religious and political persecu-
tion.

[11] The Ladhas testified that they genuinely feared perse-
cution and presented compelling proof of past persecution,
evidence of religious and political violence that the govern-
ment could not control. The Ladhas' testimony compelled a
finding of past persecution on account of political and reli-
gious opinion.

[12] The Ladhas met their burden of proof with regard to
withholding of deportation. A key factor in finding evidence
sufficient for withholding of deportation is whether the harm
or threats of harm were aimed against the petitioner specifi-
cally. Because the evidence was close, and because the BIA
applied the wrong legal standard to the evidence on its first

                               5698


assessment, remand was warranted for the BIA to reassess the
withholding of deportation claim under the proper standard.

[13] Because the BIA erred as a matter of law as to the
objective component of the asylum decision, and because the
BIA expressly declined to rule on the issue of credibility,
remand was also warranted for findings as to credibility.
Remand was also required for the BIA to determine whether
the Ladhas showed entitlement to withholding of deportation.

[14] The Ladhas raised the issue of the admissibility of the
documents excluded by the IJ on the record before the IJ and
in their notice of appeal to the BIA. The BIA had a full oppor-
tunity to resolve the controversy or correct its own errors
when it conducted a de novo review of the record of the Lad-
has' case. This claim was exhausted.

[15] Under the Fifth Amendment's Due Process Clause, an
alien facing deportation is entitled to a full and fair hearing of
his claims and a reasonable opportunity to present evidence
on his behalf. The BIA's decision will be reversed if a pro-
ceeding was so fundamentally unfair that the alien was pre-
vented from reasonably presenting his case, and the alien was
prejudiced by this unfairness. Statutes and regulations also
grant an alien a right to present evidence. When these protec-
tions are denied, and the denial results in prejudice, the consti-
tutional guarantee of due process has been denied.

[16] A decision of the BIA or IJ must contain a sufficient
indication of the content of excluded evidence to allow for a
review of the exclusion for fundamental fairness. [17] The
IJ's decision in this case revealed nothing of substance about
the documents. The IJ did not identify their content during his
colloquy with counsel nor in his oral decision to exclude the
documents. Moreover, the IJ did not enter the documents into
the record for the purposes of identification. Thus, on this
record, there was no means of reviewing the IJ's decision to
exclude evidence.

                               5699


[18] Remand was required to clarify the record with regard
to the excluded evidence.

_________________________________________________________________

COUNSEL

Gary Silbiger, Silbiger & Honig, Los Angeles, California, for
the petitioners.

Laura M. Friedman, United States Department of Justice,
Office of Immigration Litigation, Washington, D.C., for the
respondent.

_________________________________________________________________

OPINION

WARDLAW, Circuit Judge:

Shabanali Ladha ("Mr. Ladha") and Khatoon Ladha ("Mrs.
Ladha"), husband and wife, and Farzana Ladha ("Farzana"),
their daughter, are Pakistani nationals and citizens. They peti-
tion for review of the decision of the Board of Immigration
Appeals ("BIA") denying their claims to asylum and with-
holding of deportation. The BIA held that, even assuming that
the Ladhas' testimony was credible, they had not met their
burden of proof because they failed to provide corroborative
evidence of their testimony. The Ladhas also challenge a deci-
sion of the Immigration Judge ("IJ") to exclude certain evi-
dence from the immigration hearing. We have jurisdiction,1
and we hold that the BIA erred as a matter of law in requiring
corroborative evidence to support the Ladhas' credible testi-
mony and that the IJ erred as a matter of law in failing to
_________________________________________________________________
1 Our jurisdiction is under former Immigration and Nationality Act
S 106(a), 8 U.S.C. S 1105a(a) (1994), as modified by the transitional rules
of the Illegal Immigration Reform and Immigrant Responsibility Act of
1996 ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996),
as amended by Pub. L. No. 104-302, 110 Stat. 3656 (Oct. 11, 1996).

                               5700


make a record of the evidence. We grant the petition for
review, reverse in part, vacate in part, and remand in part.

I.

The background evidence in the record, set forth in a State
Department report and in Mr. Ladha's testimony, sets the
stage well for the Ladhas' claims. Mr. and Mrs. Ladha were
born in Bombay, India, and moved to Karachi, Pakistan, when
British India was partitioned. The Ladhas thus belong to the
Khoja, or Mohajir,2 community in Pakistan, which comprises
"Pakistanis who emigrated from India at the time of the parti-
tion of the subcontinent in 1947, or their direct descendants."
Bureau of Democracy, Human Rights and Labor, U.S. Dep't
of State, Pakistan -- Profile of Asylum Claims and Country
Conditions 10 (1996) ("Profile"). Although Muslim, the Kho-
jas are a small religious minority within Pakistan's Muslim
population. "In a population of nearly 132 million people, 77
percent are Sunni Muslims [and] 20 percent Shia Muslims."
Id. at 7. The Khojas are within the minority Shia branch, and,
according to Mr. Ladha, the Khoja sect constitutes only about
"two to five percent" of the Shia population.

Relations between the Shia and the Sunni are unstable.
"While the Shia are well integrated into Pakistani society and
occupy responsible positions in society, there have been out-
breaks of Sunni-Shia violence from time to time . . . ." Id.
"Both Sunnis and Shiites have their own social, political and
cultural organizations; some of these have been involved in
attacks on individuals of the other religious persuasion . . . ."
Id. Although the government generally responds quickly to
such violence, according to the Profile,"in Karachi over the
last few years . . . a serious law and order problem, in part but
not exclusively arising from sectarian violence, has devel-
_________________________________________________________________
2 The record suggests that the terms are interchangeable, and the appli-
cants seem to favor the word "Khoja."

                               5701


oped." Id. (noting that "for the first half of 1996, however,
Karachi has been relatively quiet.").

Another rift in Pakistani society is between competing vio-
lent political organizations. The Mohajir Quami Movement
("MQM") is "a political organization representing the inter-
ests of mohajirs." Id. at 10. The MQM is split into two wings,
which have "tense" relations with one another. Id. at 11. "Vir-
tually all Pakistani political parties have armed militants and
the MQM is no exception. It should be said also, however,
that MQM members have sometimes been the victims of
human rights abuses, including the killing of MQM workers,
committed by other political party militants." Id. at 11.

II.

In the fall of 1995, the Immigration and Naturalization Ser-
vice ("INS") charged the Ladhas with being deportable for
staying in the United States after their authorization had
expired. All three conceded deportability, but sought asylum,
withholding of deportation, and in the alternative, voluntary
departure. Although their original application cited other
bases for relief under the Immigration and Nationality Act
("INA"), the Ladhas now rely on allegations of political, reli-
gious and social-group persecution. See 8 U.S.C. S 1101(a)
(42)(A) (1994) (listing the bases for refugee status).

At the hearing before the IJ, most of the testimony was
from Mr. Ladha, who testified in Urdu. Mr. Ladha testified
that he was the chief priest3 over six Khoja churches in the
Karachi area and that his church had 2500-3000 members. He
described his duties at the church, testifying that he had been
a priest from 1984 to 1990. Mr. Ladha also testified that he
supported the MQM. He provided "[m]onitoring or if they
needed any help, material-wise," i.e., "[i]f they needed some
_________________________________________________________________
3 The words "priest" and "church" were used by Mr. Ladha to describe
his religious position and congregation, and so we follow his usage.

                               5702


table, the chair, they wanted to make some arrangements for
them for the meetings, I would help them."

As Mr. Ladha relates it, the majority Sunni Muslims "be-
lieve that we are not Muslims" and "warn that we should not
believe in our practices, our religion." Mr. Ladha describes a
pattern of abuse of his church members at the hands of people
that he identified as "Suni [sic] fundamentalists and from
Jamatay Islam":4 "when our ladies go to the church to pray
and to meditate," these people would "bother the ladies. They
abuse them and they do that all the time." When asked for
specifics, he stated "When we go to our church in the evening
for prayers, it is the time to pray, they come and interfere.
They come in like in our way. They touch the ladies. They
snatch their purses. They come and block their ways with two
escorters."

In July 1988, Mr. Ladha encountered violence at the
church. "Some people came to our church and just tried --
like they broke the doors, windows, and just tried everything,
and we had some speed breakers there to reduce speed and
they broke that." Mr. Ladha added that these attackers were
the "people from Jamatay Islam and Sunis [sic]." He testified
that he came upon the church in the midst of this attack and
"[w]hen I tried to talk with them, they slapped me."5 Mr.
Ladha further testified that "[w]e filed a report against those
people who broke all of the things against them in the police
station right away. Because police was under their influence
they did not take any step."

Violence struck another time that year. "[T]he fundamen-
talists, Suni [sic] Muslims," Mr. Ladha relates, "came to our
shops and they beat us up there and we had -- and they
_________________________________________________________________
4 The meaning of the phrase "Jamatay Islam" is not explained in the
record.
5 Mr. Ladha was forced to overcome the inappropriately hostile ques-
tioning of the IJ to provide this information.

                               5703


closed our shutters down and they threatened us, and they said
that we should not support the Mohajer Khomy [sic ] move-
ment." The group addressed Mr. Ladha "[b]ecause they knew
that I was the leader of the church and they knew that if I
don't support them that sect or that church will not support
these people." "They said that if I stopped the support it
would be better for me. Otherwise, they said that we can harm
your family."

Mr. Ladha testified that he did not cease his support for
MQM, and that in 1990, when Mr. Ladha was not at home,
the fundamentalists came to his house and "abused our
ladies," including pushing his pregnant daughter-in-law and
hitting her "with a rifle butt on her face and there are still
marks of that . . . ." Mrs. Ladha was also pushed, and Farzana
was present. After this incident, the Ladhas left for the United
States because they believed their "lives were in danger."
More abstractly, he explained that "[t]he reason . . . we left
Pakistan is because our -- in Pakistan our religion is consid-
ered a minorities among minorities." The Ladhas intended to
return to Pakistan "if the conditions got better; " however, Mr.
Ladha's brothers have informed him that it is still not safe to
return and, except for a brief visit by Mr. Ladha to sell some
property, they have not returned. Mr. Ladha testified that his
congregation still exists and still is being bothered, and that
the person who is the church's priest keeps changing, because
the priest is "the target" of the Sunni fundamentalists.

Mrs. Ladha and Farzana testified more briefly and con-
firmed the main details of Mr. Ladha's account. Farzana indi-
cated that at the attack at their house she was "touched in the
wrong places, it was not right" and that the attackers were
Sunni Muslims from the Pakistan Peoples Party. She also
gave details about her own work as a teacher and aide to her
father at the church. She testified that if she returned to Paki-
stan some people would recognize her as the priest's daughter
and that even if not recognized as such, her distinctive dress
would identify her as Khoja and cause her to be "considered

                               5704


as a foreigner." Mrs. Ladha likewise confirmed the occur-
rence of the violence in her home, and described the duties
she had at the church.

The IJ rejected the Ladhas' asylum and withholding of
deportation claims, granting them voluntary departure.6 The
IJ's decision contains a hodgepodge of rationales, some of
which, at least, strike us as incorrect. Because the BIA pro-
vided de novo review of the record, however, we do not
review the decision of the IJ but instead that of the BIA. See
Yepes-Prado v. INS, 10 F.3d 1363 (9th Cir. 1993) (noting that
"any errors made by the IJ will be rendered harmless" by the
BIA's de novo review).

Explicitly reserving the question of the Ladhas' credibility,
the BIA dismissed their appeal, citing its decisions in Matter
of M-D-, Interim Decision 3339 (BIA 1998) (en banc), Matter
of S-M-J-, Interim Decision 3303 (BIA 1997) (en banc), and
Matter of Dass, 20 I. & N. Dec. 120 (BIA 1989). It concluded
that the Ladhas failed to meet their "affirmative duty to cor-
roborate, to the degree they can, both their personal circum-
stances and the general country conditions that frame their
asylum claim." The BIA wrote that "[t]he record contains no
corroboration of the specific events they describe, nor does it
contain evidence that Khojas generally or Khoja clergy spe-
cifically are being targeted for harm." Further,"[g]iven the
lead respondent's alleged prominence, the particularity of
their claim, the broad environment of sectarian violence and
abuse they describe, and the time available in which to obtain
supporting documentation, it is not unreasonable to expect the
respondents to provide more meaningful corroboration or
explain their failure to do so," especially "when the record
indicates that Khojas continue to practice their faith in Paki-
stan today, even in the respondents' own mosque."
_________________________________________________________________
6 He also refused to admit two documents, offered by the Ladhas, into
evidence. See supra Part IV.

                               5705


The Ladhas timely petitioned for review.

III.

A.

"We review de novo purely legal questions regarding the
requirements of the Immigration and Nationality Act . . . ,"
Hartooni v. INS, 21 F.3d 336, 340 (9th Cir. 1994), although
the BIA's interpretation of the meaning of the statute is enti-
tled to the deference according to the rules of Chevron U.S.A.
Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837
(1984). See INS v. Aguirre-Aguirre, 119 S. Ct. 1439, 1445-46
(1999); INS v. Cardoza-Fonesca, 480 U.S. 421, 446 (1987);
see also Jenkins v. INS, 108 F.3d 195, 201 (9th Cir. 1997)
(The court "must give substantial deference to an agency's
interpretation of its own regulations." (internal quotation
marks omitted)). We do not, however, explicitly apply the
principles of deference to questions already controlled by cir-
cuit precedent, because a panel may not reconsider the cor-
rectness of an earlier panel's decisions, see Bonin v. Vasquez,
999 F.2d 425, 428 (9th Cir. 1993), "unless an en banc deci-
sion, Supreme Court decision, or subsequent legislation
undermines [that] decision[ ]," Visness v. Contra Costa
County (In re Visness), 57 F.3d 775, 778 (9th Cir. 1995)
(quoting United States v. Washington, 872 F.2d 874, 880 (9th
Cir. 1989)) (internal quotations omitted).

Not only must a panel of this court follow the decisions of
previous panels, but also the BIA must follow the decisions
of our court. See Pitcherskaia v. INS, 118 F.3d 641, 646 (9th
Cir. 1997) (The BIA "is also bound by our prior decisions
interpreting the Act."); Fisher v. INS, 79 F.3d 955, 961 (9th
Cir. 1996) (en banc) (same); Singh, 63 F.3d at 1508 ("A fed-
eral agency is obligated to follow circuit precedent in cases
originating within that circuit.").

"[F]actual findings by the Board regarding asylum or with-
holding of deportation claims are `conclusive' if`supported

                               5706


by reasonable, substantial, and probative evidence on the
record considered as a whole.' " Hartooni , 21 F.3d at 340
(quoting 8 U.S.C. S 1105a(a)(4)). "We reverse such findings
only where the evidence presented by the applicant would
compel any reasonable factfinder to reach a contrary result."
Id. (citing INS v. Elias-Zacarias, 502 U.S. 478, 483-84
(1992)).

B.

[1] A "refugee" under section 101(a)(42)(A) of the Immi-
gration and Nationality Act, 8 U.S.C. S 1101(a)(42)(A)
(1994), is generally eligible for asylum in the United States.
See 8 U.S.C. S 1158(a) (1994). A refugee is an alien who is
unwilling to return to his or her country of origin "because of
persecution or a well-founded fear of persecution on account
of race, religion, nationality, membership in a particular social
group, or political opinion." 8 U.S.C. S 1101(a)(42)(A)
(1994). " `Persecution' means `the infliction of suffering or
harm upon those who differ . . . in a way regarded as offen-
sive.' " Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir. 1997)
(quoting Sagermark v. INS, 767 F.2d 645, 649 (9th Cir.
1985)). "[P]ersecution cognizable under the Act can emanate
from sections of the population that do not accept the laws of
the country at issue, sections that the government of that
country is either unable or unwilling to control. " Borja v. INS,
175 F.3d 732, 736 n.1 (9th Cir. 1999) (en banc).

[2] "To establish a well-founded fear of persecution, peti-
tioners must show their fear to be both objectively reasonable
and subjectively genuine." Reyes-Guerrero v. INS, 192 F.3d
1241, 1244 (9th Cir. 1999). "An alien satisfies the subjective
component by credibly testifying that he genuinely fears per-
secution." Duarte de Guinac v. INS, 179 F.3d 1156, 1159 (9th
Cir. 1999). "The objective component can be established in
two different ways." Id. One way to satisfy the objective com-
ponent is to prove persecution in the past, giving rise to a
rebuttable "presumption that a well-founded fear of future

                               5707


persecution exists." Id.; see 8 C.F.R. S 208.13(b)(1)(i) (1999).
The second way is to "show a good reason to fear future per-
secution by adducing credible, direct, and specific evidence in
the record of facts that would support a reasonable fear of per-
secution." Duarte de Guinac, 179 F.3d at 1159; see Reyes-
Guerrero, 192 F.3d at 1244 (stating that the evidence must
show "that persecution is a reasonable possibility."). The
objective requirement can be met by "either through the pro-
duction of specific documentary evidence or by credible and
persuasive testimony." Duarte de Guinac, 179 F.3d at 1159.
Even after an alien proves himself or herself to be a refugee
eligible for asylum, the decision to grant asylum is left to the
discretion of the Attorney General. See id.

[3] An alien is entitled to withholding of deportation "if the
evidence demonstrates a clear probability that the applicant
would be persecuted were he to be deported to his home
country." Id. He or she must show "more likely than not that
he [or she] will be persecuted on account of one of the five
enumerated factors were he to return." Id. (internal quotation
marks omitted). A rebuttable presumption of entitlement to
withholding of deportation arises when an applicant shows
that he or she "has suffered past persecution such that his life
or freedom was threatened in his home country on account of
a protected ground." Id. at 1164; see id. at 1159. The Attorney
General has no discretion to deny withholding of deportation
to eligible aliens. See id. at 1159.

IV.

The BIA expressly declined to determine whether the Lad-
has' testimony was credible. Instead, assuming credibility, the
BIA held that the Ladhas' claims failed because they did not
provide (or justify the absence of) independent corroboration
of facts that the BIA deemed readily susceptible to corrobora-
tion. The BIA classifies the Ladhas' supposed failing as not
having met their burden of proof. This analysis is legal error.

                               5708


A.

[4] The Immigration and Nationality Act ("INA") itself
does not detail matters of proof on the question of asylum, but
the Attorney General has the implicit power to do so, because
she is charged with the enforcement of the Act. See Chevron,
U.S.A., Inc., 467 U.S. at 843; 8 U.S.C. S 1103(a) (Supp. II
1996).7 The governing INS regulation in effect at the time of
the Ladhas' hearing provided that "[t]he testimony of the
applicant, if credible in light of general conditions in the
applicant's country of nationality or last habitual residence,
may be sufficient to sustain the burden of proof without cor-
roboration." 8 C.F.R. S 208.13(a) (1996). 8 The Attorney Gen-
eral has delegated her authority to the BIA to resolve asylum
and withholding cases. See 8 C.F.R. 3.1(d)(1) (1999)
("Subject to any specific limitation prescribed by this chapter,
in considering and determining cases before it as provided in
this part the Board shall exercise such discretion and authority
conferred upon the Attorney General by law as is appropriate
and necessary for the disposition of the case."). In practice,
this means the BIA must interpret the law that it is applying
to the facts of a case. The BIA has interpreted the law to
require, under some circumstances, the corroboration of credi-
ble evidence.

In Matter of S-M-J-, Interim Decision 3303 (BIA 1997) (en
banc), one of the cases relied upon by the BIA in rejecting the
Ladhas' claim, the BIA discussed its view of the role of cor-
roborative evidence in assessing applicants' claims. As the
BIA sees it, corroborative evidence affects the analysis of
_________________________________________________________________
7 Arguably, she also has the explicit authority to do so because she is
empowered (and required) to establish a procedure for making asylum
determinations. See 8 U.S.C. S 1158(d)(1) (Supp. II 1996). But cf. Dick v.
New York Life Ins. Co., 359 U.S. 437 (1959) (for Erie purposes, burden
of proof is not procedural but substantive).
8 In the same vein, the current provision states: "The testimony of the
applicant, if credible, may be sufficient to sustain the burden of proof [for
asylum eligibility] without corroboration." 8 C.F.R. S 208.13(a).

                               5709


both (1) whether testimony is credible and (2) whether credi-
ble testimony meets the burden of proof. The BIA wrote:

       Where the record contains general country condi-
      tion information, and an applicant's claim relies pri-
      marily on personal experiences not reasonably
      subject to verification, corroborating documentary
      evidence of the asylum applicant's particular experi-
      ence is not required. Unreasonable demands are not
      placed on an asylum applicant to present evidence to
      corroborate particular experiences (e.g., corrobora-
      tion from the persecutor). However, where it is rea-
      sonable to expect corroborating evidence for certain
      alleged facts pertaining to the specifics of an appli-
      cant's claim, such evidence should be provided.

Matter of S-M-J-, Interim Decision 3303, at 5-6 (emphasis
added); see id. at 6 ("[A]n asylum applicant should provide
documentary support for material facts which are central to
his or her claim and easily subject to verification, such as evi-
dence of his or her place of birth, media accounts of large
demonstrations, evidence of a publicly held office, or docu-
mentation of medical treatment.").9 

Matter of S-M-J- focused on corroboration through the pre-
sentation of general background evidence, which it deemed
_________________________________________________________________
9 The BIA apparently intended Matter of S-M-J- to clarify its previous
holding in Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987) (en
banc), in which it wrote:

      Although every effort should be made to obtain ["documentary
      or other corroborative"] evidence, the lack of such evidence will
      not necessarily be fatal to the application. The alien's own testi-
      mony may in some cases be the only evidence available, and it
      can suffice where the testimony is believable, consistent, and suf-
      ficiently detailed to provide a plausible and coherent account of
      the basis for his fear.

Id. at 445-46.

                               5710


lacking in S-M-J-'s case. In Matter of M-D-, Interim Decision
3339 (BIA 1998) (en banc), however, the BIA made clear that
S-M-J-'s rule of corroboration applies to specific allegations
as well as general context. See Matter of M-D-, Interim Deci-
sion 3339, at 4. The BIA concluded that "where an alien's tes-
timony is the only evidence available, it can suffice where the
testimony is believable, consistent, and sufficiently detailed to
provide a plausible and coherent account of the basis of the
alien's alleged fear," but that "the introduction of such evi-
dence is not `purely an option' with the asylum applicant;
rather, corroborating evidence should be presented where
available." Matter of M-D-, Interim Decision 3339, at 3-4
(citations omitted). The BIA wrote that "we find it reasonable
in this case to expect basic documentation of nationality and
identity, as well as confirmation of his or his family's pres-
ence at [a] refugee camp," and listed a variety of forms of cor-
roboration that it would expect reasonably could be provided.10
Matter of M-D-, Interim Decision #3339, at 6. Noting the lack
of corroboration (or explanation for its absence), the BIA dis-
missed M-D's appeal. See id.

B.

[5] We are not free to consider as an open question whether
the BIA has hit upon a permissible interpretation of the INA,
for the law we must follow is already set out for us: "this
court does not require corroborative evidence," Cordon-
Garcia v. INS, 204 F.3d 985, 992 (9th Cir. 2000), from appli-
_________________________________________________________________
10 Identified as lacking were (1) documents showing national identity;
(2) a corroborative "letter or affidavit" from the alien's sister with whom
he is in contact, (3) "any other correspondence or affidavits substantiating
the respondent's testimony," (4) "supporting evidence from his family,
despite the fact that his sister maintains regular contact with them in the
refugee camp"; (5) "evidence of his former presence at the refugee camp
in Senegal, where he claims to have lived for 11 months"; and (6) "evi-
dence confirming his family's presence in the camp, despite the fact that
his family has been living there for the past 7 years and continues to reside
in the camp." Matter of M-D-, Interim Decision 3339, at 4-6.

                               5711


cants for asylum and withholding of deportation who have
testified credibly. "This court recognizes the serious difficulty
with which asylum applicants are faced in their attempts to
prove persecution, and has adjusted the evidentiary require-
ments accordingly." Id. at 992-93 (citation omitted). More-
over, as we have noted, "[t]hat . . . objective facts are
established through credible and persuasive testimony of the
applicant does not make those fears less objective. " Aguilera-
Cota v. INS, 914 F.2d 1375, 1378 (9th Cir. 1990) (quoting
Bolanos-Hernandez v. INS, 767 F.2d 1277, 1285 (9th Cir.
1985) (internal quotation marks omitted)). The rule estab-
lished in the BIA's cases, and applied to the Ladhas, is
unequivocally contrary to the rule in this circuit. See Singh, 63
F.3d at 1508 ("A federal agency is obligated to follow circuit
precedent in cases originating within that circuit.").

[6] That the law in this circuit is clear is demonstrated by
three lines of cases, each with a different focus, but each
reaching the same conclusion. The first line emphasizes the
difficulty of proving specific threats by persecutors, and
emphasizes that credible testimony as to a threat is sufficient
to prove that the threat was made (though further proof that
the threat is "serious" may be required before relief is
granted). See, e.g., Lopez-Reyes v. INS , 79 F.3d 908, 912 (9th
Cir. 1996) ("[T]he applicant's testimony, if unrefuted and
credible, is sufficient to establish the fact that a threat was
made."); Artiga Turcios v. INS, 829 F.2d 720, 723 (9th Cir.
1987) ("The alien is not, however, required to provide inde-
pendent corroborative evidence of the threats of persecution.
An alien's own testimony regarding specific threats can estab-
lish a clear probability of persecution, if credible and sup-
ported by general documentary evidence that the threats
should be considered serious." (citation omitted)); Bolanos-
Hernandez, 767 F.2d at 1285, 1288 (noting that corroboration
is not necessary for an alien's "unrefuted and credible" testi-
mony about the fact of a threat and that "general corroborative
evidence, such as documentary evidence, may be most useful"
to show that the maker of the threat had "the will or the ability

                               5712


to carry it out" (internal quotation marks omitted) (second
alteration in original)). The rationale in these cases for deem-
ing corroboration to be unnecessary for credible testimony of
a specific threat is that "[a]uthentic refugees rarely are able to
offer direct corroboration of specific threats" and that
"[p]ersecutors are hardly likely to provide their victims with
affidavits attesting to their acts of persecution. " Bolanos-
Hernandez, 767 F.2d at 1285.

[7] A second line of cases emphasizes that not only specific
threats but also other facts that serve as the basis for an asy-
lum or withholding claim can be shown by credible testimony
alone if corroborative evidence is "unavailable. " See Castillo
v. INS, 951 F.2d 1117, 1121 (9th Cir. 1991) ("The objective
standard may be satisfied with the applicant's testimony alone
if documentary evidence is unavailable."); Limsico v. INS,
951 F.2d 210, 212 (9th Cir. 1991) ("Where corroborating doc-
umentary evidence is unavailable, an alien's testimony alone
will suffice to prove a well-founded fear, but only if it is cred-
ible, persuasive, and specific." (internal quotation marks omit-
ted); Estrada-Posadas v. INS, 924 F.2d 916, 918-19 (9th Cir.
1991) (same); Aguilera-Cota, 914 F.2d at 1378 ("Where the
evidence is not available, the applicant's testimony will suf-
fice if it is credible, persuasive, and specific."); Blanco-
Comarribas v. INS, 830 F.2d 1039, 1042-43 (9th Cir. 1987)
("[I]f documentary evidence is not available, the applicant's
testimony will suffice if it is credible, persuasive, and refers
to specific facts that give rise to an inference that the appli-
cant has been or has a good reason to fear that he or she will
be singled out for persecution on one of the specified grounds
listed in section 208(a)." (internal quotation marks omitted)
(alteration in the original)); Del Valle v. INS , 776 F.2d 1407,
1411 (9th Cir. 1985) (same); Cardoza-Fonseca v. INS, 767
F.2d 1448, 1453 (9th Cir. 1985) (same), aff'd , 480 U.S. 1421
(1987). These cases seem to assume that evidence supporting
the claim, if not presented, is unavailable in the relevant
sense. As the court in Aguilera-Cota stated:

                               5713


      We have previously tried to make it clear that asy-
      lum applicants are not required to produce documen-
      tary evidence of events such as those involved here
      [the receipt of a threatening note and the appearance
      of an inquisitive stranger at Aguilera-Cota's home].
      As we have previously stated, "Persecutors are not
      likely to provide their victims with affidavits attest-
      ing to their acts of persecution."

Aguilera-Cota, 914 F.2d at 1380; see also id. at 1378
("Documentary evidence establishing past persecution or
threat of future persecution is usually sufficient to satisfy the
objective component of the well-founded fear standard. But
we have also recognized that refugees frequently  do not pos-
sess documentary evidence regarding such events. " (emphasis
added)).

[8] The breadth of the circuit's rule that corroboration of
credible testimony is not necessary can be seen in the third
line of cases. These cases make clear that when an alien credi-
bly testifies to certain facts, those facts are deemed true, and
the question remaining to be answered becomes whether these
facts, and their reasonable inferences, satisfy the elements of
the claim for relief. No further corroboration is required. See
Khourassany v. INS, _______ F.3d _______, 2000 WL 347167, at *3
(9th Cir. Apr. 5, 2000) ("Because the BIA left the IJ's positive
credibility determination undisturbed, we accept Khouras-
sany's testimony as true."); Yazitchian v. INS, _______ F.3d _______,
2000 WL 339764, at *2 (9th Cir. Apr. 3, 2000) ("Because the
immigration judge found the Yazitchians' testimony credible,
and the BIA did not make a contrary finding, we must accept
as undisputed the facts as petitioners testified to them.");
Duarte de Guinac v. INS, 179 F.3d 1156, 1159 (9th Cir. 1999)
("The applicant may make this showing [of an objective well-
founded fear of persecution] either through the production of
specific documentary evidence or by credible and persuasive
testimony."); Del Carmen Molina v. INS, 170 F.3d 1247,
1249 & n.2 (9th Cir. 1999) (Because of "the IJ's finding that

                               5714


[petitioner's] testimony was credible, this uncontradicted tes-
timony must be taken as true" and petitioner's "actual, uncon-
tradicted and credible testimony did evidence past
persecution."); Campos-Sanchez v. INS, 164 F.3d 448, 451
n.1 (9th Cir. 1999) ("[I]f the BIA finds the petitioner credible
on remand, it should not require corroborating documents in
order to establish his claim of a well-founded fear of persecu-
tion. Our cases are clear that such corroboration is encouraged
but not required."); Garrovillas v. INS, 156 F.3d 1010, 1016
(9th Cir. 1998) ("Although Garrovillas provided documentary
evidence of his past persecution and his political activities,
corroborative evidence is not necessary for a petitioner to
establish past persecution."); Velarde v. INS , 140 F.3d 1305,
1312 (9th Cir. 1998) ("The IJ explicitly found Velarde to be
credible and the government failed to produce any evidence
against her. As a result, all facts testified to by Velarde must
be taken as true."); Hartooni, 21 F.3d at 342 (9th Cir. 1994)
("Absent an explicit finding that a specific statement by the
petitioner is not credible we are required to accept her testi-
mony as true."); Beltran-Zavala v. INS, 912 F.2d 1027, 1030
(9th Cir. 1990) ("Once credibility has been accorded to Bel-
tran's testimony, corroborative evidence is not required.").11
_________________________________________________________________
11 Some cases use the ambiguous word "may," as in, "his own testi-
mony, if credible, may establish a clear probability of persecution,"
Blanco-Lopez v. INS, 858 F.2d 531, 532 (9th Cir. 1988), as does the gov-
erning regulation, 8 C.F.R. S 208.13(a) (1999) ("The testimony of the
applicant, if credible, may be sufficient to sustain the burden of proof
without corroboration.") In context, we do not understand this usage to
mean that sometimes corroboration of credible testimony is necessary to
support the facts testified to. Instead, we consider it to indicate that some-
times the facts, credibly testified to and taken therefore to be true, will not
cover all elements of the asylum or withholding claim needed to justify
relief. See, e.g. Blanco-Lopez, 858 F.2d at 532 ("Petitioner is not required
to provided independent corroborative evidence of persecution. Rather, his
own testimony, if credible, may establish a clear probability of persecu-
tion." (emphasis added)); Turcios v. INS, 821 F.2d 1396, 1402 (9th Cir.
1987) ("[A]n alien's unrefuted and credible testimony may be sufficient"
to show a clear probability of persecution.).

                               5715


[9] We have taken this opportunity to review the extensive
and consistent rule on corroboration of our circuit because of
the BIA's apparent adherence to an incompatible rule. We
reaffirm that an alien's testimony, if unrefuted and credible,
direct and specific, is sufficient to establish the facts testified
without the need for any corroboration. To the extent that
decisions such as Matter of S-M-J- and Matter of M-D- estab-
lish a corroboration requirement for credible testimony, they
are disapproved.

C.

[10] Assuming the Ladhas to be credible, as we must in the
absence of an explicit finding by the BIA to the contrary, see
Hartooni, 21 F.3d at 342 (9th Cir. 1994), and applying the
governing law of our circuit, we hold that the evidence com-
pels the conclusion that the Ladhas are eligible for asylum on
account of religious and political persecution. 12

[11] Assuming the Ladhas' credibility, they have satisfied
the subjective component of the test for asylum eligibility. See
Duarte de Guinac, 179 F.3d at 1159 ("An alien satisfies the
subjective component by credibly testifying that he genuinely
_________________________________________________________________
12 There is no dispute that the Ladhas have exhausted their religious per-
secution claim. Although the INS argues that the Ladhas' political perse-
cution claim was not exhausted, because the BIA held it to have been
waived by not being raised on appeal, we disagree. Although before the
BIA the parties do not specifically use the phrase "persecution on account
of political opinion," the IJ had specifically considered and rejected the
political asylum claim, in part apparently because he found not credible
what he described as Mr. Ladha's claim of torture based on his member-
ship in the MQM, and the Ladhas' brief before the BIA challenges this
very aspect of the IJ's opinion. The BIA thus had sufficient reason to be
aware of, and opportunity to review, this claim, cf. Sagermark, 767 F.2d
at 648 (9th Cir. 1984), and we find that the Ladhas have administratively
exhausted it. In contrast, the Ladhas have failed to exhaust their claim to
persecution on account of social group, by failing to make reference to the
relevant claim before the BIA, leaving us without jurisdiction to consider
the claim on judicial review. See Vargas, 831 F.2d at 908.

                               5716


fears persecution."). On the objective side of the analysis, the
record shows the Ladhas to have presented compelling proof
of past persecution. See id. As noted above, the record con-
tains background evidence of religious and political violence,
and reveals that, at least in Karachi in what seems to be the
relevant period, the government was not able to control the
violence. They further testified to a general harassment of the
members of their church. Having provided that background
context, the Ladhas testified to three incidents of physical vio-
lence and threats against them, at the hands of Sunni funda-
mentalists, on account of the Ladhas' related religious and
political beliefs: (i) in their church, which was attacked and
in which Mr. Ladha was slapped; (ii) at the "shops" where, as
Mr. Ladha testified, "they beat us up threatened us, and they
said that we should not support the Mohajer Khomy[sic]
movement"; and (iii) in their home, where invaders assaulted
Mr. Ladhas' family. Mr. Ladha testified to his support for the
MQM party. He made clear that, at least during the attack at
the shops, the reason he was specifically targeted was his
position as a church leader: the attackers spoke to him
"[b]ecause they knew that I was the leader of the church and
they knew that if I don't support them that sect or that church
will not support these people," and "[t]hey said that if I
stopped the support it would be better for me. Otherwise, they
said that we can harm your family." These facts compel a
finding of past persecution on account of political and reli-
gious opinion. Therefore, a rebuttable presumption arises of
a well-founded fear of future persecution. This presumption
was not rebutted by evidence in the record; indeed, the State
Department Profile provides country conditions information
supporting the claims of the Ladhas. In addition, Farzana spe-
cifically testified that despite a recent change in political
power, part of the hostile Sunni party was still in power. We
conclude that the record compels the conclusion that the INS
has not rebutted the presumption by a preponderance of the
evidence, see Duarte de Guinac, 179 F.3d at 1159, through
"individualized analysis of how changed conditions will
affect the specific petitioner's situation," Borja, 175 F.3d at

                               5717


738 (quoting Garrovillas, 156 F.3d at 1017 (internal quotation
marks omitted)).

[12] With regard to withholding of deportation, we con-
clude that the evidence may not compel, but certainly does
not prohibit, a finding that the Ladhas have met their burden
of proof. Although, as noted above, the record compels a con-
clusion of past persecution, a reasonable factfinder might not
be compelled to find that the past persecution carried the
threat of death or imprisonment. See Duarte de Guinac, 179
F.3d at 1164 (noting that a presumption of entitlement to
withholding of deportation arises if the applicant has shown
past persecution "such that his life or freedom was threatened
in his home country on account of a protected ground.").
Moreover, the evidence in the record focusing on the future
likelihood of persecution may also not compel the conclusion
that "more likely than not" the future persecution would
occur. On the other hand, "[a] key factor in finding evidence
sufficient for withholding of deportation is whether the harm
or threats of harm were aimed against the petitioner specifi-
cally." Chanchavac v. INS, _______ F.3d _______, 2000 WL 306356
(9th Cir. Mar. 27, 2000) (finding that Chanchavac was enti-
tled to withholding of deportation because "[t]he military tar-
geted Chanchavac specifically when it broke into his home,
beat and interrogated him, and copied down his name") (quot-
ing Vilorio-Lopez v. INS, 852 F.2d 1137, 1141 (9th Cir. 1988)
(emphasis added)) (internal quotation marks omitted).
Because the "compelling" nature of this evidence is a close
call, and because the BIA applied the wrong legal standard to
the evidence on its first assessment, we remand for the BIA
to reassess the withholding of deportation claim under proper
standard.

D.

[13] Because we reverse the BIA's conclusion as to the
objective component of the asylum decision, and because the
BIA "expressly declined to rule on the issue" of credibility,

                               5718


we remand the case for findings as to credibility. Briones v.
INS, 175 F.3d 727, 730 (9th Cir. 1999) (en banc). If the BIA
determines that the Ladhas testified credibly under Ninth Cir-
cuit law, then the Attorney General shall exercise her discre-
tion and determine whether to grant asylum. We also remand
for the BIA to determine whether the Ladhas have shown an
entitlement to withholding of deportation.

V.

Because we are remanding for factual determinations, we
must address the Ladhas's challenge to the IJ's evidentiary
exclusion of two proffered documents.

A.

[14] A preliminary question is whether the Ladhas
exhausted administrative remedies on this issue. See 8 U.S.C.
S 1105a(c) (1994) ("An order of deportation or of exclusion
shall not be reviewed by any court if the alien has not
exhausted the administrative remedies available to him as of
right under the immigration laws and regulations . .. .").
Although they urged the admissibility of the evidence at the
deportation hearing and raised the issue in their notices of
appeal to the BIA, the Ladhas did not discuss it in their briefs
before the BIA. Nonetheless, our opinion in Vargas v. INS,
831 F.2d 906 (9th Cir. 1987), suggests that they have satisfied
the exhaustion requirement. In Vargas, we found that the peti-
tioner had failed to exhaust his administrative remedies on the
claim that a record of conviction, introduced at the deporta-
tion hearing, was inaccurate. We observed that:

      At the deportation hearing Vargas objected to the
      complaint portion of the record on hearsay grounds
      and specifically stated that he had "no problem with
      the conviction record itself." Moreover, Vargas
      failed to file a brief with the BIA and his notice of

                               5719


      appeal to the BIA only challenged the IJ's discre-
      tionary decision to deny him a waiver of deportation.

Vargas, 831 F.2d at 908 (footnote omitted) ("Had Vargas
brought his due process claim before the IJ or BIA, the
descriptive error in the conviction record could have been cor-
rected. However, because Vargas failed to do this, he did not
exhaust his administrative remedies."). Unlike Vargas, the
Ladhas both raised the issue of the admissibility of this evi-
dence on the record before the IJ and further raised the issue
in their notice of appeal to the BIA. Notices of appeal are
filed directly with the BIA, see 8 C.F.R.S 3.3(a) (1999), and
the regulations specifically contemplate that supporting briefs
are not required to be filed by a party, see 8 C.F.R. S 3.38(f)
(1999) ("Briefs may be filed by both parties . . . ." (emphasis
added)); therefore, the notice of appeal is of great importance
in raising claims before the BIA. Because the BIA conducted
a de novo review of the record in this case, we conclude that
it had "a full opportunity to resolve [the ] controversy or cor-
rect its own errors before judicial intervention, " Sagermark v.
INS, 767 F.2d 645, 648 (9th Cir. 1984), and that therefore the
claim was exhausted.

B.

[15] Under the Fifth Amendment's Due Process Clause,
"an alien who faces deportation is entitled to a full and fair
hearing of his claims and a reasonable opportunity to present
evidence on his behalf." Colmenar v. INS, _______ F.3d _______, 2000
WL 376671, at *4 (9th Cir. Apr. 14, 2000). "[I]f the proceed-
ing was `so fundamentally unfair that the alien was prevented
from reasonably presenting his case,' " and if the alien shows
prejudice from this unfairness, we will reverse the BIA's deci-
sion. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000)
("To prevail on a due process challenge to deportation pro-
ceedings, Lata must show error and substantial prejudice");
see also Espinoza v. INS, 45 F.3d 308, 310, 311 (9th Cir.
1995) (noting that "[t]he sole test for admission of evidence

                               5720


is whether the evidence is probative and its admission is fun-
damentally fair" and holding that the refusal to allow cross-
examination of the preparer of an INS form did not justify
relief where it would not have affected the outcome); cf. Trias
Hernandez v. INS, 528 F.2d 366 (9th Cir. 1975) (probative
documentary evidence, admitted without the presence of the
author at trial, was not "so fundamentally unfair so as to vio-
late due process"). In addition to the Due Process Clause, stat-
utes and regulations grant the alien a right to present
evidence. See, e.g., 8 U.S.C. S 1252(b)(3) (1994) (pre-IIRIRA
provision of the INA stating that in a deportation hearing "the
alien shall have a reasonable opportunity to examine the evi-
dence against him, to present evidence on his own behalf, and
to cross-examine witnesses presented by the Government").13
"When these protections are denied, and such denial results in
prejudice, the constitutional guarantee of due process has
been denied." Jacinto v. INS, _______ F.3d _______, 2000 WL 271896,
at *2 (9th Cir. Mar. 4, 2000).

Before we are able to determine whether the exclusion of
proffered evidence has rendered an immigration hearing fun-
damentally unfair or violated the statute or regulations with
resultant prejudice, we must have before us a sufficient
description of the excluded evidence. If an IJ excludes a docu-
ment without either entering the document into the record for
the purposes of identification or describing the document's
content orally and on the record, we have no adequate way of
reviewing the IJ's decision.14 In other related contexts, we
_________________________________________________________________
13 The current, post-IIRIRA, provisions are similar. See, e.g., 8 U.S.C.
S 1229a(b)(4)(B) (Supp. II 1996) ("[T]he alien shall have a reasonable
opportunity to examine the evidence against the alien, to present evidence
on the alien's own behalf, and to cross-examine witnesses presented by the
Government . . . .").
14 Even if the parties could supplement the record on the petition for
review, compare Fisher, 79 F.3d at 963 (concluding that the court is not
permitted to take judicial notice of materials not in the administrative
record), with Colmenar, _______ F.3d at _______, 2000 WL 376671, at *5 n.5 (9th

                               5721


have made clear that the BIA must provide reasons for its
actions sufficient to allow for judicial review. See Stoyanov v.
INS, 172 F.3d 731, 735 (9th Cir. 1999) ("In order for this
court to conduct a proper substantial evidence review of the
BIA's decision, the Board's opinion must state with sufficient
particularity and clarity the reasons for denial of asylum."
(internal quotation marks omitted)); Velarde, 140 F.3d at
1310 (9th Cir. 1998) ("Failure by the BIA `to support its con-
clusions [denying relief] with a reasoned explanation based on
legitimate concerns' . . . constitutes an abuse of discretion.")
(quoting Vargas, 831 F.2d at 908) (bracketed alteration in
original)); Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir. 1995)
(requiring that "the Board provide a comprehensible reason
for its decision sufficient for us to conduct our review and to
be assured the petitioner's case received individualized atten-
tion"); Castillo v. INS, 951 F.2d 1117, 1121 (9th Cir. 1991)
("Boilerplate opinions, which set out general legal standards
yet are devoid of statements that evidence an individualized
review of the petitioner's contentions and circumstances, nei-
ther afford the petitioner the BIA review to which he or she
is entitled, nor do they provide an adequate basis for this court
to conduct its review.").

[16] We therefore hold that a decision of the BIA or IJ
under review in this court must contain a sufficient indication
of the content of excluded evidence to allow us to review the
exclusion for fundamental fairness. Any other conclusion
would be nonsensical in the face of the constitutional, statu-
tory, and regulatory regime allowing for an asylum applicant
_________________________________________________________________
Cir. Apr. 14, 2000) ("Although we believe that a petitioner is entitled to
present evidence outside the record in order to show that he was preju-
diced by the lack of a full and fair hearing, we can find no cases in which
we have stated this proposition explicitly. Therefore, we are especially
reluctant to penalize Colmenar for failing to explain exactly what evidence
he would have presented below if given the change."), this method would
have a number of severe disadvantages, including depriving us of a mean-
ingful review by the BIA of the IJ's decision.

                               5722


to offer evidence and the right of judicial review of final
orders of deportation. See Chevron U.S.A. Inc. , 467 U.S. at
842-43 ("If the intent of Congress is clear, that is the end of
the matter; for the court, as well as the agency, must give
effect to the unambiguously expressed intent of Congress.").15

[17] The IJ's decision in this case failed to meet this stan-
dard. The IJ excluded a letter from Mr. Ladha's brother and
a document from Mr. Ladha's church. The letter from the
brother was apparently written in 1996. The IJ rejected the
letter as "totally self-serving and not admissible and not wor-
thy of any evidence or value, whatsoever," at least in part
because it was not written contemporaneously with the events
it described. The second document, described in the transcript
as a notarized copy of a church document written in 1984,
was also rejected, apparently because the IJ did not have con-
fidence in the notarization and also felt the documents were
"self-serving," although the IJ's explanation is particularly
unclear on the precise ground for finding this document inadmis-
sible.16 Aside from these facts, the IJ revealed nothing of sub-
stance about the documents. The IJ did not identify their
content during his colloquy with counsel nor in his oral deci-
sion to exclude the documents. Moreover, the IJ did not enter
the documents into the record for the purposes of identification.17
We are thus left, on this record, with no means of reviewing
the IJ's decision to exclude evidence.
_________________________________________________________________
15 Moreover, this conclusion is consistent with the statute providing that
"a complete record shall be kept of all testimony and evidence produced
at the proceeding." 8 C.F.R. S 1229a(b)(4)(C) (Supp. II 1996).
16 Although on this inadequate record we cannot assess the propriety of
the IJ's decision, we note that excluding documents for being "self-
serving" is not a sound practice. Cf. Murphy v. INS, 54 F.3d 605, 612 (9th
Cir. 1995) ("Testimony should not be disregarded merely because it is
uncorroborated and in the individual's own interest.").
17 Our review shows nothing in the record that appears to correspond to
the excluded letter; although a document in the record may be the
excluded church document, we cannot be certain.

                               5723


[18] Therefore, on remand we instruct the BIA to clarify
the record with regard to the excluded evidence or to remand
to the IJ for such clarification. See Castillo , 951 F.2d at 1121
("Those Board opinions that lack an adequate statement of the
BIA's reasons for denying the petitioner relief must be
remanded to the Board for clarification of the bases for its
opinion.").

VI.

For the foregoing reasons, we GRANT the petition for
review, REVERSE the BIA's determination as to the objec-
tive component of asylum eligibility, VACATE the BIA's
determination as to withholding of deportation, and
REMAND the case for further proceedings.

                               5724


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