Martina Sheriff v. Attorney General of the United States

1
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-1645
MARTINA SHERIFF,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
ON PETITION FOR REVIEW FROM AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Agency No. A95-378-190
Immigration Judge: Honorable Alberto J. Riefkohl
Argued: September 21, 2009
Before: BARRY, FISHER and JORDAN, Circuit Judges
(Opinion Filed: November 24, 2009)
Dennis Mulligan, Esq. (Argued)
Nationalities Service Center
1216 Arch Street
4th Floor
Philadelphia, PA 19107-0000
Counsel for Petitioner

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2
Susan B. Green, Esq. (Argued)
Richard M. Evans, Esq.
Lindsay B. Glauner, Esq.
Angela N. Liang, Esq.
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044-0000
Counsel for Respondent
OPINION OF THE COURT
BARRY, Circuit Judge
This is a case of almost unimaginable horrors inflicted on a
Liberian woman by supporters of former Liberian president,
Charles Taylor. Those horrors, which include witnessing the
murder of her mother and the rape of her daughter, who later died;
the abduction of her other daughter, now presumed dead; and her
own capture and detention, during which time she was bound with
electrical wire and raped multiple times, prompt us, as a matter of
first impression for our court, to consider, among other issues, what
has come to be known as “humanitarian asylum.”
Some background is in order. The Republic of Liberia is a
country with a violent and, indeed, sordid past. Charles Taylor was
elected president in 1997 after years of leading a bloody insurgency
against the Liberian government, various militias, and the civilian
population. It was an authoritarian rule, notable for its brutality,
ending in August 2003 when Taylor resigned as President, and was
exiled to Nigeria. He was later indicted for, inter alia, crimes
against humanity by the Special Court for Sierra Leone. In
November 2005, Ellen Johnson-Sirleaf was elected president,
becoming Africa’s first elected female head of state.
Martina Sheriff (“Sheriff”) is a 48 year-old native and

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3
citizen of Liberia, with no formal education. She is a Muslim and
a member of the Mandingo tribe, a group that, beginning in late-
1989, was targeted and savaged by the National Patriotic Front of
Liberia (“NPFL”), rebels led by Taylor. The savagery continued
throughout Taylor’s rule as President and, if Sheriff is to be
believed – and there is no suggestion she should not be – even after
he was removed from office.
In 1990, NPFL rebels entered Sheriff’s village and
massacred more than 400 Mandingos, including women and
children. Sheriff’s mother was murdered and her oldest daughter,
Mawata, was raped in front of her. The girl later died. Her house
was burned to the ground, bodies were strewn everywhere, and the
rebels had run amok. As the atrocities and mass confusion
continued, Sheriff and her family escaped to Guinea, returning
home only when a peacekeeping force was deployed to her home
area.
In 1997, Sheriff joined the All-Liberia Coalition Party
(“ALCOP”), a political party opposed to Taylor and supporting the
interests of the Mandingos. ALCOP was headed by Alhaji
Kromah, a Mandingo. Sheriff was head of its women’s wing in the
area in which she lived. After Taylor’s election, Sheriff was
hunted by his forces because she had supported Kromah and was
a Mandingo.
In September 1998, Taylor’s forces again raided Sheriff’s
village and arrested her, along with others, accusing them of being
spies for Kromah. Sheriff was beaten, treated as a slave, tied with
electrical wire, raped by four of her captors over the period of a
week or two, and almost died. She was released through the
intervention of religious leaders, and again fled to Guinea. She
returned home in April 1999 in an effort to take her father, a
teacher of religion, to Guinea to care for him after he was arrested,
tortured, and shot in the leg by Taylor’s forces because they
believed he had prayed that Kromah would win the election. He
was not allowed to leave, and died of his wounds. Sheriff’s village
was still engulfed in rebel fighting, and the atrocities continued.
During that fighting and the confusion that ensued, Sheriff’s
daughter, Massa, was abducted and is presumed dead.

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4
Sheriff took her remaining children and escaped for a final
time to Guinea, but Liberian forces invaded the town in which she
was living, beat her, and shot and killed the woman who was caring
for her, as well as a number of other people. Sheriff fled Guinea
and entered the United States on May 15, 2001, using the dead
woman’s passport. She was charged as removable under 8 U.S.C.
§ 1227(a)(1)(B) and 8 U.S.C. § 1227(a)(3)(C), and conceded
removability. She has been seeking asylum, withholding of
removal, and relief under the U.N. Convention Against Torture
ever since, alleging persecution on account of her Mandingo
ethnicity and her membership in a political party that opposed the
rule of Charles Taylor. She explained why:
Q. [N]ow, what do you think would happen to
you, Martina, if you were to return to Liberia
today?
A. When I go back, they will kill me.
Q. Why do you think that would happen?
* * *
A. They still searching for me.
Q. Who is?
A. People that cause me to come here.
Q. Okay.
A. Charles Taylor people.
Q. Okay, you understand Charles Taylor is no
longer the president of Liberia?
A. Yes, I know.
Q. With him no longer being power, in office,
why do you fear Charles Taylor or his
people?
A. The people he left in power, they still there.
They never leave.
Q. Okay, and why do you think those people
would want to harm you if you returned?
A. They will kill me.
* * *
Q. Why?
A Being Mandingo.
(App. 153-54.)

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1 The IJ’s comments at the hearing (App. at 99) indicate
that he was also in possession of the 2003 Country Reports,
although that document does not appear in the record.
5
On April 24, 2006, the Immigration Judge (“IJ”) found
Sheriff to be credible and granted her application for asylum,
concluding, first, that the government had not rebutted the
presumption of a well-founded fear of future persecution, and,
second, that even if it had, Sheriff had demonstrated reasons so
compelling that humanitarian asylum was warranted under 8 C.F.R.
§ 208.13(b)(1)(iii). The Department of Homeland Security
(“DHS”) appealed to the Board of Immigration Appeals (“BIA”)
which, on February 5, 2008, sustained the appeal, one member
dissenting (without opinion), and denied Sheriff’s applications for
asylum, withholding of removal and relief under the Convention
Against Torture.
The BIA did not disturb the IJ’s credibility finding, but took
administrative notice of the 2006 U.S. Department of State Country
Reports for Liberia (“Country Reports”) and concluded that there
had been a “fundamental change in country conditions” since the
2000 Country Reports in the record1 and the November 2004
hearing before the IJ, and that the presumption of a well-founded
fear of persecution had, therefore, been rebutted. (App. at 4.) The
BIA also found that, although Sheriff’s “mistreatment was
despicable,” id., humanitarian asylum was not warranted because
she had not shown compelling reasons for being unable or
unwilling to return to Liberia.
Sheriff timely petitioned for review, pressing only her claim
for asylum, and we stayed her removal. We will grant the petition
and remand to the BIA for reasons we will explain below. We note
here, however, that what underlies almost all of what will follow
is the utter failure of the BIA to apparently even consider, much
less discuss, many if not most of the atrocities to which Sheriff was
subjected; her testimony that she will be killed if she is returned to
Liberia, and why; and the documentary evidence in the case. The
BIA was not entitled to simply ignore such a powerful presentation
and summarily conclude that the presumption had been rebutted
and that humanitarian relief was not in order.

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6
I. Jurisdiction and Standard of Review
The BIA had jurisdiction to hear DHS’s appeal of the IJ’s
decision pursuant to 8 C.F.R. § 1003.1(b)(3). We have jurisdiction
pursuant to 8 U.S.C. § 1252(a). Because the BIA issued its own
decision, we review that decision, and not that of the IJ.
Ezeagwuna v. Ashcroft, 301 F.3d 116, 126 (3d Cir. 2002).
We will affirm “the Attorney General’s discretionary
judgment whether to grant relief under [the asylum statutes]”
unless that judgment was “manifestly contrary to the law and an
abuse of discretion.” 8 U.S.C. § 1252(b)(4)(d). More specifically,
the BIA’s determinations will be upheld if they are supported by
reasonable, substantial, and probative evidence in the record
considered as a whole. Yusupov v. Att’y Gen., 518 F.3d 185, 197
(3d Cir. 2008). Under the substantial evidence standard, the BIA’s
determinations “must be upheld unless the evidence not only
supports a contrary conclusion, but compels it.” Abdille v.
Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001); Chavarria v.
Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006). However, as just
suggested, “the BIA must substantiate its decisions. We will not
accord the BIA deference where its findings and conclusions are
based on inferences or presumptions that are not reasonably
grounded in the record.” Id. (internal citations and quotations
omitted).
II. Legal Standards
On appeal, Sheriff argues that the BIA erred in concluding
that DHS rebutted the presumption of future persecution. This
argument is based not only on the evidence of record that was not
considered by the BIA but on the fact that the BIA considered
Country Reports that were not in the record and that it applied the
wrong standard of review. Sheriff also claims that, regardless of
whether the presumption had been rebutted, the BIA erred in
concluding that she was not eligible for humanitarian asylum.
“The Attorney General ‘may’ grant asylum to an alien who
demonstrates that he/she is a refugee.” Gao v. Ashcroft, 299 F.3d
266, 271 (3d Cir. 2002) (quoting 8 U.S.C. § 1158(b)(1)). A
refugee is a “person unable or unwilling to return to the country of

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2 An applicant can also establish himself or herself as a
refugee on the basis of a well-founded fear of persecution alone if
7
that person’s nationality or habitual residence because of past
persecution or because of a well-founded fear of future persecution
on account of h[er] race, religion, nationality, membership in a
particular social group, or political opinion.” Id. at 271-72 (citing
8 U.S.C. § 1101(a)(42)(A)). Persecution “must amount to more
than generally harsh conditions shared by many other persons, but
does include threats to life, confinement, torture, and economic
restrictions so severe that they constitute a real threat to life or
freedom.” Lin v. INS, 238 F.3d 239, 243-44 (3d Cir. 2001)
(internal citations and quotations omitted). The applicant bears the
burden of establishing that he or she meets the prerequisites for
status as a refugee. See 8 C.F.R. § 208.13(a) (“The burden of proof
is on the applicant for asylum to establish that he or she is a refugee
. . . .”); see also Ezeagwuna, 301 F.3d at 127.
To be eligible for asylum on the basis of past persecution,
the applicant must show “(1) an incident, or incidents, that rise to
the level of persecution; (2) that is ‘on account of’ one of the
statutorily-protected grounds; and (3) is committed by the
government or forces the government is either ‘unable or
unwilling’ to control.” Gao, 299 F.3d at 272 (quoting Navas v.
INS, 217 F.3d 646, 655 (9th Cir. 2000)). It is undisputed that
Sheriff has met the requirements for past persecution, which was
perhaps why the BIA gave the back of its hand to much of the
evidence of record. The burning of Sheriff’s home and the murder
of her mother and rape of her eldest daughter in front of her were
among the atrocities not mentioned by the BIA because, we are
told, it was not required to mention every “detail,” as the
government somewhat cavalierly describes them. (Appellee’s Br.
at 37.)
An applicant who has established past persecution shall be
presumed to have a well-founded fear of persecution on the basis
of the original claim. That presumption may be rebutted, however,
if an immigration judge finds that there has been a fundamental
change in circumstances in the native country such that the
applicant no longer has a well-founded fear of persecution.2 See 8

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there “is a reasonable possibility of suffering such persecution if .
. . [the applicant] were to return to [the] country,” and “[the
applicant] is unable or unwilling to return to . . . [the] country
because of such fear.” Id. § 208.13(b)(i)(2)(B)&(C). This
provision is not pressed on this appeal.
8
C.F.R. § 208.13(b)(1)(i). “The burden of proof in a changed-
country-conditions rebuttal is on the government.” Berishaj v.
Ashcroft, 378 F.3d 314, 327 (3d Cir. 2004) (citing 8 C.F.R. §
208.13(b)(1)(ii)).
Even if the presumption of future persecution is rebutted, an
applicant can still be granted asylum if he or she “has demonstrated
compelling reasons for being unwilling or unable to return to the
country arising out of the severity of the past persecution” or “has
established that there is a reasonable possibility that he or she may
suffer other serious harm upon removal to that country.” 8 C.F.R.
§ 208.13(b)(1)(iii).
III. Discussion
A. Has the Presumption Been Rebutted?
The government does not take issue with the unremarkable
proposition that the IJ was required to consider the record as a
whole in evaluating Sheriff’s application for asylum, nor does it
suggest that the IJ did not do just that. Neither does the
government argue that it rebutted the presumption of a well-
founded fear of persecution before the IJ, nor could it because its
only submissions to the IJ were two 2004 articles from the BBC
website – “Liberia moves against Taylor aides” and “New call for
Taylor to face trial.” Thus, what is before us is the one paragraph
of the BIA’s decision addressing whether, in light of changed
country conditions, the presumption was rebutted before it, a
paragraph in which the BIA completely ignored the record and
faulted the IJ only for not “citing to any particular documents” as
to two of the IJ’s numerous findings, i.e. that “Mr. Taylor still has
supporters in Liberia” and that “the situation outside of Monrovia
is still delicate.” (App. at 4.) We stress that the BIA did not say,
because it could not say, that evidence of those findings was not in

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9
the record, but only that the IJ did not specify where in the record
that evidence could be found. A slender reed, indeed.
Those “particular documents” and their location in the
record aside, the BIA ignored Sheriff’s gripping testimony that
Taylor’s people are still in power, are searching for her, and will
kill her if she returns. That testimony, we note, was corroborated
by, among other evidence that went unmentioned, the affidavit of
Shelkh K. M. Sackor, in which Ms. Sackor explained that Taylor
still has power in Liberia – his former Defense Minister for six
years, for example, is Defense Minister in the new administration,
his Chief of Operations at the Liberian National Police is an
Assistant Justice Minister, and both rebel and government forces
continue to extort and frighten individuals, giving Sheriff
“legitimate cause for fear of her life if she returns.” (Id. at 208.)
In terms of security for civilians such as Sheriff, Ms. Sackor
concluded, “everything is degenerating by the day.” (Id. at 209.)
Ignoring the evidence before the IJ that was relevant to
whether the presumption was rebutted, much of which was
referenced in the IJ’s opinion in April 2006, the BIA, in its one
paragraph discussion, took administrative notice of the 2006
Country Reports. Based on that, and nothing more, the BIA
concluded as follows:
[W]e find that conditions in Liberia have materially
changed . . . . The Country Reports state that the
government of Liberia generally respects the human
rights of its citizens and is taking significant steps to
correct past human rights deficiencies. While the
Country Reports indicate that problems still exist in
some areas, and deaths from mob violence have
increased, there is no indication that persons who
opposed Charles Taylor are persecuted by the
current government or remaining Charles Taylor
supporters.
(Id. at 4 (citing 2006 Country Reports).)
It is certainly clear from the 2006 Country Reports that
conditions in Liberia had (and have) changed in important ways

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3 Whether a petitioner has a due process right to notice and
an opportunity to be heard before the BIA takes administrative
notice of Country Reports is a separate issue, and one that we need
not address. See note 5, infra.
10
since the time of Sheriff’s persecution: Taylor is no longer in office
and is on trial for war crimes in another country, and the
democratically-elected government in Liberia has made strides in
the direction of improving human rights. But, as we said in
Berishaj, general evidence of improved country conditions will not
suffice to rebut credible testimony and other evidence establishing
past persecution; evidence of changed country conditions can
successfully rebut the presumption only if it addresses the specific
basis for the alien’s fear of persecution. 378 F.3d at 327-28. The
2006 Country Reports are silent as to the fact and/or strength of
Taylor’s remaining supporters; indeed, Taylor’s name appears only
twice in the fifteen-page Country Reports, once to note that the
government arrested twenty of his associates on suspicion of
plotting against the government, and once to recite the historical
fact that Taylor was transferred to Sierra Leone to face war crimes
charges emanating from that country’s civil conflict. The Country
Reports surely do not suggest that Taylor supporters are no longer
roaming the country or Sheriff’s region and no longer pose a threat
to her. The BIA does not tell us why the IJ’s specific findings in
those regards were rejected even as it accepted the IJ’s finding that
Sheriff testified credibly as to them. It certainly seems
questionable, at least to us at this juncture, that the general
evidence of an improved human rights situation relied upon by the
BIA, combined with the fact that Taylor no longer holds office,
was enough to rebut the presumption.
We do not mean to suggest that the BIA was not within its
rights to consider the 2006 Country Reports even though those
Reports were not part of the record before the IJ.3 In Berishaj, we
expressed our strong displeasure with the state of affairs presented
by our appellate review of BIA decisions. Too frequently, we
complained, the BIA was relying upon outdated and antiquated
Country Reports not reflective of the state of affairs even at the
time of the BIA’s decision. See id. at 328-31 (discussing the
problems presented by stale administrative records in asylum cases,

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4 Cf. Janusiak v. INS, 947 F.2d 46, 48 n.1 (3d Cir. 1991)
(“The [BIA] often aids courts of appeals by taking administrative
notice of important facts about the country in question. This aid is
often a part of our decision-making, since defining persecution is
an elusive and precise task, one that is at the margins perhaps
uniquely political in nature.”).
11
and noting that “[i]t has become common that . . . country reports
in the administrative record are three or four years old by the time
the petition for review comes before us”). Accordingly, we urged
the BIA to make greater use of procedures allowing for the
reopening of proceedings based on new facts, and also urged the
BIA “to adopt – by opinion, regulation, or otherwise – policies that
will avoid the Court of Appeals having to review administrative
records so out-of-date as to verge on meaningless.” Id.4
There is a regulation that does exactly that. 8 C.F.R. §
1003.1(d)(3)(iv) provides that “[e]xcept for taking administrative
notice of commonly known facts such as current events or the
contents of official documents, the [BIA] will not engage in
factfinding in the course of deciding appeals.” The commentary to
this regulation explicitly envisions that the BIA will consider
Country Reports:
Section 3.1(d)(3) . . . generally prohibits the
introduction and consideration of new evidence in
proceedings before the Board, except for taking
administrative notice of commonly known facts such
as current events, or the contents of official
documents such as country condition reports
prepared by the Department of State.
67 Fed. Reg. 54878, 54891 (August 26, 2002) (emphasis added).
The Department intends by use of [this regulatory
language, supra] to make clear that the [BIA] may
take administrative notice not only of current events
but also of the contents of official documents such as
the country condition reports prepared by the

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5 Given this assumption, we need not reach Sheriff’s
argument that she had a due process right to notice and an
opportunity to be heard before the BIA took administrative notice
of the 2006 Country Reports. It follows, therefore, that we need
not decide whether the fact that earlier Country Reports were in the
record before the IJ and/or cited to the BIA by Sheriff should be
deemed adequate notice of the 2006 Country Reports. We note
that what constitutes adequate notice and an opportunity to be
heard and what would cure a lack of notice are issues as to which
the courts of appeals are currently divided.
12
Department of State, including its foreign policy
expertise, analysis, and opinion.
Id. at 54892.
As we noted at the outset, we will not accord deference to
the findings and conclusions of the BIA that are not reasonably
grounded in the record. It is at best a close call as to whether the
2006 Country Reports provide the type of specific evidence of
improvement in country conditions that would rebut the
presumption of future persecution, and we have already bemoaned
the BIA’s failure to address Sheriff’s evidence in that regard. We
will remand to the BIA when it has failed to adequately consider
the evidence in the record which favors an applicant. See Tipu v.
INS, 20 F.3d 580, 583 (3d Cir. 1994). In light of the questionable
basis on which the BIA rejected the IJ’s findings, we will do so
here. We assume that on remand the parties will have an
opportunity to address the effect, if any, of the most recent County
Reports. 5 This assumption prompts us to note the rather pointed
reminder to the BIA by one of our sister courts of appeals not to
treat Country Reports, “as is its tendency, as Holy Writ.” Galina
v. INS, 213 F.3d 955, 959 (7th Cir. 2000).
Because we will remand, we believe it appropriate to briefly
discuss the standard of review that the BIA is required to apply to
its determination that DHS did or did not rebut the presumption of
a well-founded fear of persecution, because it is far from clear that
it applied that standard on its initial review. For all appeals to the
BIA filed on or after September 25, 2002, the determination as to

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13
whether certain facts give rise to a well-founded fear of persecution
is governed by a de novo standard of review, but the clearly
erroneous standard applies to the fact-finding that undergirds that
determination. Compare 8 C.F.R. § 1003.1(d)(3)(i) (“The Board
will not engage in de novo review of findings of facts . . . . Facts
determined by the immigration judge . . . shall be reviewed only to
determine whether the findings of the immigration judge are clearly
erroneous.”) with id. § 1003.1(d)(3)(ii) (“The Board may review
questions of law, discretion, and judgment and all other issues in
appeals from decisions of immigration judges de novo.”).
Thus, the BIA erred if it imposed a de novo standard of
review on findings about conditions in Liberia, but not if it
imposed a de novo standard on whether certain conditions legally
constitute a rebutted presumption of a well-founded fear of future
persecution. The BIA’s reasoning in this area was sparse:
With regard to a well-founded fear of persecution,
we find that, even assuming the respondent
experienced past persecution, the presumption of a
well-founded fear of persecution has been rebutted
because the preponderance of the evidence
demonstrates that there has been a fundamental
change in circumstances such that the respondent no
longer has a well-founded fear of persecution.
(App. at 4.)
It is difficult, if not impossible, to determine what standard
of review the BIA applied, and to what determinations. We expect
that on remand, the BIA will make this clear.

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6 In Matter of Chen, which was codified in the initial
regulation, the BIA granted humanitarian asylum to a victim of the
Chinese Cultural Revolution. The applicant’s father was a
Christian minister who had been attacked, beaten, forced to write
false confessions, and badly burned after being pushed into a
bonfire of burning Bibles. The applicant himself, at the age of 8,
was kept in a locked room with his grandmother for over six
months, not permitted to attend school, and refused food when he
would cry. After being released from confinement, he had rocks
thrown at him and suffered serious physical injuries, including a
14
B. Humanitarian Asylum
We turn, finally, to humanitarian asylum and the regulation
which provides the opportunity for humanitarian asylum in one of
two ways. That regulation, 8 C.F.R. § 208.13(b)(1)(iii), states, in
relevant part, that an applicant who has suffered past persecution
and who does not face a reasonable possibility of future
persecution may be granted asylum if he or she has demonstrated
“compelling reasons for being unwilling or unable to return to that
country arising out of the severity of the past persecution,” 8
C.F.R. § 208.13(b)(1)(iii)(A), or has established “that there is a
reasonable possibility that he or she may suffer other serious harm
upon removal to that country. . . .” 8 C.F.R. § 208.13(b)(1)(iii)(B).
Only the first of these subsections (and its predecessor) has
received more than passing mention in the caselaw or any
interpretation by the BIA, and we have not had the occasion to
address either subsection in a precedential opinion.
Humanitarian asylum based on the severity of past
persecution alone – the (A) subsection of the regulation – is also
known as “Matter of Chen” asylum. See In re Matter of Chen, 20
I. & N. Dec. 16, 18 (BIA 1989) (“[I]t is clear from the plain
language of the statute that past persecution can be the basis for a
persecution claim.”). The Court of Appeals for the Ninth Circuit
explained its view: “The Matter of Chen exception is an expression
of humanitarian considerations that sometimes past persecution is
so horrific that the march of time and the ebb and flow of political
tides cannot efface the fear in the mind of the persecuted.” Lal v.
INS, 255 F.3d 998, 1009 (9th Cir. 2001).6

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permanent one requiring him to wear a hearing aid. Later, he was
sent away from home for reeducation, where he was subject to a
new variety of abuses.
After finding that since the time of the Cultural Revolution,
country conditions in China had changed substantially, the BIA
found itself unpersuaded “that a reasonable person in [the
applicant’s] circumstances would have a well-founded fear of
persecution on account of his religion.” 20 I. & N. Dec. The BIA
nonetheless granted asylum, finding that the severity of the
applicant’s past persecution was such that, despite the changed
country conditions, he was statutorily eligible and entitled to
remain in the United States. Id. at 21-22.
7 And see Vongsakdy v. INS, 171 F.3d 1203 (9th Cir. 1999)
(reversing BIA and finding Laotian man who was imprisoned in a
work camp for several years, beaten, harassed, and tortured eligible
for humanitarian asylum); Lal v. INS, supra (finding Hindu-Fijian
man who was repeatedly detained, beaten, burned with cigarettes,
deprived of food and water, forced to drink urine and eat meat even
though a Hindu-vegetarian, and forced to watch as government
soldiers sexually assaulted his wife, eligible for humanitarian
asylum).
15
There is consensus among those few courts of appeals that
have weighed in on the question of how severe the past persecution
must have been before an applicant is eligible for Matter of Chen
asylum that it must have been extreme indeed. The Court of
Appeals for the Ninth Circuit set the standard as follows: “Absent
a likelihood of future persecution, asylum is warranted [under this
subsection] only if [the applicant] demonstrates that in the past he
or his family has suffered under atrocious forms of persecution.”
Kazlauskas v. INS, 46 F.3d 902, 906 (9th Cir. 1995) (internal
citations, quotations, and alterations omitted); see also Lopez-
Galarza v. INS, 99 F.3d 934, 961-62 (9th Cir. 1996) (reiterating
standard) (noting that “rape at the hands of government authorities
while imprisoned on account of one’s political views can be an
atrocious form of punishment indeed,” and remanding to the BIA
for consideration of whether a Nicaraguan woman’s confinement,
rape, and vandalism of her home were sufficiently atrocious to
warrant humanitarian asylum.) 7

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16
The Courts of Appeals for the Fourth and Seventh Circuits
have similarly reserved humanitarian asylum based on past
persecution for the most atrocious abuse. See Bucur v. INS, 109
F.3d 399, 405 (7th Cir. 1997) (finding humanitarian asylum based
on persecution alone was “designed for the case of the German
Jews, the victims of the Chinese ‘Cultural Revolution,’ survivors
of the Cambodian genocide, and a few other such extreme cases”)
(internal citation omitted); Gonahasa v. INS, 181 F.3d 538, 544
(4th Cir. 1999) (denying humanitarian asylum based on persecution
alone where applicant was detained for two weeks, beaten, and cut
with bayonets by government police, and limiting it to “‘the rare
case where past persecution is so severe that it would be inhumane
to return the alien even in the absence of any risk of future
persecution’”) (quoting Vaduva v. INS, 131 F.3d 689, 690 (7th Cir.
1997)).
We see little support, in those few instances in which the
BIA has interpreted “severity of the past persecution,” for limiting
humanitarian asylum under subsection A to victims such as those
of the Holocaust, the Chinese Cultural Revolution, the survivors of
Cambodian genocide, or those who have suffered similar atrocious
abuse, as those early cases explicitly or implicitly have done,
although we recognize that, particularly given its citation to Bucur,
the BIA, albeit without discussion, appeared to have so limited it
here. That having been said, there can be no dispute that severe
means severe, as evidenced by the Supplementary Information to
the proposed rule regarding procedures for asylum and withholding
of removal published in the Federal Register on June 11, 1998. 63
Fed. Reg. 31945, 31947. In that Supplementary Information, the
Department of Justice (“Department”) recognized that it was
possible to interpret the citation of certain of its decisions in Matter
of H-, Interim Decision # 3276 (BIA 1996), as indicating that
asylum could be granted based on “general humanitarian factors,
unrelated to the [past persecution], such as age, health, or family
ties,” rather than on “compelling reasons arising out of the severity
of the past persecution.” Id. To avoid any such possibility, the
Department amended the then-existing regulation to underscore
that a grant of Matter of Chen asylum is allowed only where there
are compelling reasons related to the severity of the past
persecution, providing relief to those who have suffered worst.

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8 The BIA did note that Sheriff was raped by four of her
captors. We have previously discussed the serious nature and
consequences of rape in the immigration context. Zubeda v.
Ashcroft, 333 F.3d 463, 472 (3d Cir. 2003) (“Rape can constitute
torture. Rape is a form of aggression constituting an egregious
violation of humanity . . . . The effects of rape appear to endure for
months or even years . . . . Moreover, courts have equated rape
with conduct recognized under the law of nations as torture.”)
(internal citations and quotations omitted).
17
The BIA disposed of Sheriff’s humanitarian asylum claim
in one sentence, describing her “mistreatment” as “despicable,” but
finding that she had not established compelling reasons for
otherwise being unable or unwilling to return to Liberia. If the
BIA based its finding that she was unable or unwilling to return
only on the few incidents of “mistreatment” it mentioned at the
outset of its opinion, it may or may not have been correct.8 But the
BIA failed to discuss, and we have no way of knowing if it even
considered, the evidence that Taylor’s forces burned Sheriff’s
home to the ground, murdered her mother and raped her daughter
in front of her, shot her father and then refused to allow him to
leave the country for medical treatment, abducted her other
daughter, and murdered the woman with whom she was staying in
Guinea. These events, and the credible, uncontradicted and very
specific testimony of Sheriff as to why she fears returning to
Liberia, are important parts of the totality of the circumstances that
were before the BIA when it reviewed the IJ’s grant of
humanitarian asylum, but the BIA did not mention any of it. It will
have the opportunity to consider those circumstances on remand.
We mentioned above the proposed rule published in the
Federal Register on June 11, 1998. This rule, which amended the
eligibility requirements for victims of past persecution seeking
asylum, became final on December 6, 2000 and effective on
January 5, 2001. 65 Fed. Reg. 76,121, 76,133. This amendment
of the then-existing regulation is highly relevant and of potential
seminal importance to this case and, one would think, to numerous
other cases. Surprisingly, however, the amendment has rated few
mentions in the caselaw and no mention at all by the BIA in any
interpretative statement. Codified at 8 C.F.R. §

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18
208.13(b)(1)(iii)(B) – the (B) subsection – the amendment provides
a second avenue of relief, a clearly liberalized alternative route to
humanitarian asylum for an applicant who has suffered past
persecution but does not face a reasonable possibility of future
persecution. That applicant, the amendment provides, may be
granted asylum if there is a “reasonable possibility that he or she
may suffer other serious harm upon removal to that country. . . .”
In the Supplementary Information to the proposed rule, the
Department explained why it was doing what it did. It indicated its
recognition of the fact that the “compelling reasons” related to “the
severity of the past persecution” regulation – the only regulation
pertaining to humanitarian asylum at the time – “may represent an
overly restrictive approach to the exercise of discretion in cases
involving past persecution, but no well-founded fear of future
persecution.” Thus, “[t]he Department believes it appropriate to
broaden the standards for the exercise of discretion in such cases”
and “the rule includes as a factor relevant to the exercise of
discretion, whether the applicant may face a reasonable possibility
of ‘other serious harm’ upon return to the country of origin or last
habitual residence.” The Department went on to define “other
serious harm”: “harm that may not be inflicted on account of race,
religion, nationality, membership in a particular social group, or
political group,” but harm “so ‘serious’ as to equal the severity of
persecution.” But the Department did not stop there. Rather, in a
far cry from what was required under the then-existing regulation,
it carved out only two comparatively minor harms, stating that
“mere economic disadvantage or the inability to practice one’s
chosen profession would [not] qualify as ‘other serious harm.’”
While those two examples may not pass muster, one can
imagine many that will. In, for example, one of the only cases to
have even referenced the “serious harm” subsection, the Court of
Appeals for the Seventh Circuit, although finding that the serious
abuses endured by the applicant and the attendant effects on his
mental health did not equate with the “truly heinous abuses”
required under the severity of the past persecution subsection,
remanded to the BIA to determine whether the applicant qualified
for humanitarian relief based on his past persecution and the
possibility of other serious harm:

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19
[T]he record suggests that, if returned to Russia, Mr.
Kholyavskiy would be without the only medications
that effectively have controlled the symptoms of his
mental illness and would be incapable of functioning
on his own. It also is highly questionable whether he
would be able to obtain housing and medical
treatment. . . . Debilitation and homelessness both
would appear to constitute serious harms for
purposes of 8 C.F.R. § 1208.13(b)(iii)(B).
Kholyavskiy v. Mukasey, 540 F.3d 555, 577 (7th Cir. 2008)
(emphasis added).
The BIA, which has not heretofore interpreted subsection
(B), will have the opportunity to do so on remand, and determine
whether it is “reasonably possible” that the harm Sheriff faces is
“serious.” If debilitation and homelessness are “serious” enough,
one wonders how the harms Sheriff faces and to which she credibly
testified, such as the possibility or probability of being murdered,
could not be “serious,” but we leave that to the BIA in the first
instance, and leave to it the decision as to whether further
development of the record is necessary.
IV. Conclusion
The petition for review will be granted and the case
remanded to the BIA. On remand, the BIA must evaluate, in
accordance with this Opinion, whether relief should be granted
either because the government has not rebutted the presumption of
future persecution or because Sheriff has established that
humanitarian asylum should be granted.

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