Alexandrov v. Gonzales, 04-4458.

• Decision Date: 04 April 2006
• Docket Number: No. 04-4458.,04-4458.
• Citation: 442 F.3d 395
• Parties: Todor D. ALEXANDROV, Petitioner-Appellant, v. Alberto GONZALES, Attorney General of the United States, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

442 F.3d 395

Todor D. ALEXANDROV, Petitioner-Appellant, v. Alberto GONZALES, Attorney General of the United States, Respondent-Appellee.

No. 04-4458.

United States Court of Appeals, Sixth Circuit.

Argued: March 16, 2006.

Decided and Filed: April 4, 2006.

ARGUED:

Stanley J. Horn, Azulay, Horn & Seiden, Chicago, Illinois, for Petitioner. Song E. Park, United States Department of Justice, Washington, D.C., for Respondent.

ON BRIEF:

Stanley J. Horn, Saadia Siddique, Azulay, Horn & Seiden, Chicago, Illinois, for Petitioner. Song E. Park, M. Jocelyn Wright, United States Department of Justice, Washington, D.C., for Respondent.

Before: MARTIN, NELSON, and COLE, Circuit Judges.

MARTIN, J., delivered the opinion of the court, in which COLE, J., joined. NELSON, J. (pp. 409 - 410), delivered a separate dissenting opinion.

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

Todor D. Alexandrov was born on August 21, 1971, and is a native and citizen of Bulgaria. Alexandrov entered the United States in 1996 on a student visa to attend McNeese State University in Louisiana. He never attended the university, but on May 6, 1997, filed an administrative request for asylum. On September 26, 1997, Alexandrov received notice that his asylum application had been approved. Nearly six months later, however, the INS issued a notice of intent to terminate his asylum status based on its conclusion that Alexandrov had submitted fraudulent documents in support of his application. After a hearing, the immigration court agreed that the documents were fraudulent and that Alexandrov had submitted a frivolous asylum application within the meaning of 8 U.S.C. § 1158(d)(6) and 8 C.F.R. § 1208.20.¹ Based on this finding, the court also made an adverse credibility finding against Alexandrov and denied all forms of relief.² The Board of Immigration Appeals affirmed in a conclusory order adopting the findings of the immigration court. For the following reasons, we GRANT the petition for review and REMAND for further consideration—particularly of Alexandrov's adjustment of status to a lawful permanent resident based on his derivative eligibility—before a different immigration judge.

I.

Alexandrov's application for asylum is based on his membership in Omo Ilinden, a political party in Bulgaria that advocates the causes of the Macedonian minority.³ Based on his membership in this group, Alexandrov claims that he was arrested, questioned, and beaten by the police on several occasions. He further claims that he was subpoenaed by the Bulgarian authorities to appear in court, at which time he fled to the United States. After arriving in the United States, Alexandrov claims to have learned that he was tried and sentenced in absentia to prison for five years. After granting Alexandrov's application for asylum, the INS then terminated his asylum status based on "new evidence" that the documents he used in support of his claim were forgeries.

Alexandrov described several instances of persecution that led him to seek asylum. All incidents stem from his membership in Omo Ilinden. Alexandrov testified that the first incident occurred at a demonstration where he was the co-organizer. He alleges that two police officers came up to him, grabbed him, interrogated him, and started beating him. They then put him in a car and took him to a police station. At the police station he was interrogated about Omo Ilinden and was beaten and released after "7, 8 hours of detention." Alexandrov testified that he suffered only bruises from this beating. The second arrest allegedly occurred in November 1995 when Alexandrov was visiting his parents in Lom. He testified that he was accosted on the street by police officers and taken to the police station for questioning. Alexandrov testified that he was interrogated, threatened, slapped, but not beaten, and then released. The third incident occurred in Musala in January 1996 when Alexandrov was the assistant secretary of Omo Ilinden and was again the organizer of a demonstration. He claims that the police interrupted the demonstration and arrested him and a few friends. Following the arrest, he and his friends were questioned separately at the police station and held overnight. Alexandrov testified that they were held for approximately sixteen hours, beaten with a club and hands, and eventually released. The fourth incident occurred on July 27, 1996 after a meeting of his group. He claims the police waited outside of their meeting place and then beat the meeting attendees. Alexandrov claims to have been hit over the head and lost consciousness. He was taken to the police station, questioned, beaten, kicked, and forced to sign a declaration that Omo Ilinden was a terrorist organization. Alexandrov testified that he was told he would not leave the room alive if he did not sign the declaration. He claims he was released after signing the declaration. Id. Alexandrov testified that he suffered fractured ribs and a concussion from the beating. After this, he claims that the police "became more arrogant," coming to his place of business, looking through files, going to his home and questioning his girlfriend, and then issued a subpoena to appear in court. He claims to have been issued the subpoena on October 20, 1996. Alexandrov also testified regarding other injuries suffered as a result of the four beatings, including broken bones and a broken tooth. He also testified to seeking medical treatment at hospitals following the beatings and submitted certificates from the hospitals.

Alexandrov testified that after receiving the subpoena he fled the country and later learned that he was convicted in absentia and sentenced to five years in prison on December 15, 1996. Alexandrov also testified that the National Investigative Service (NIS), upon which the government relied in determining that the subpoena was a forgery, is loyal to the new communist regime that persecuted Alexandrov.

The immigration court also questioned Alexandrov. During this questioning, Alexandrov stated that he was assistant secretary of Omo Ilinden for the Montana, Lom district in Northwest Bulgaria. The immigration court also questioned Alexandrov regarding a State Department report that says the majority of Macedonians live in the south of the country. Alexandrov testified that "there are also Macedonians throughout, throughout the country." He testified that his arrests occurred in the northwest and southwest—with the majority of the incidents of arrest, beating, and subpoena occurring in the southwest.

In the proceedings before the immigration court, the INS's entire claim rested upon the alleged forgeries. The Service did not dispute the alleged arrests and beatings that Alexandrov claimed to have suffered. The Service's evidence consists entirely of two memoranda prepared by the United States Embassy Sofia and the testimony of John McGruder. The first "Memorandum" (hereinafter, the Grencik Memorandum) is dated February 13, 1998, and is "From: Embassy Sofia, Consular Section, Theresa Grencik—Vice Consul." The Grencik Memorandum states, in its entirety:

The Consular Section has reviewed the documents submitted in support of this asylum application and has confirmed the following defects:

1. Alexandrov has presented a court decision sentencing him to five (5) years of imprisonment, allegedly issued by the Regional Court in Lom on 15 DEC 1996. The Archives Department of the Regional Court stated that the court has no record of such a decision in its files. The court did not have a judge (referred to as "chairman" in the document) named Nikolov in 1996. Finally, this document presented is on the form used for decisions in civil court cases: convictions are issued on a different form which is entitled "Conviction" not "Decision."

2. Alexandrov has submitted a copy of a subpoena allegedly issued on 15 DEC 1996 (the same date as the purported conviction, above) by the National Investigation Service (NIS) branch in Montana and signed by Captain R. Kostadinov. The NIS has no record of having issued such a subpoena, nor did it employ a Captain R. Kostadinov in 1996 or thereafter.

The most significant fraud indicator in this document is that the NIS would not issue a subpoena summoning a person to the Regional Court. The courts have independent subpoena authority and subpoena forms. A case may be referred to a court only after the conclusion of the NIS investigation, at which time a prosecutor would evaluate the case and, if necessary, would request the court to issue a subpoena. It is unheard of for the NIS to summon a person to court.

3. Alexandrov submitted medical certificates allegedly issued by the Regional Hospital in Lom and the Municipal hospital in Montana. Neither institution has any record of these certificates.

The Consular Section concludes that these documents are all forgeries.

Recognizing problems with the Grencik Memorandum, on August 27, 1998, Kathleen L. Alcorn, Assistant District Counsel, Detroit, Michigan, sent a letter to Peter Moffat, Office of Asylum Affairs, requesting a second analysis. First, with regard to the Grencik Memorandum's conclusion that the Regional Court did not have a judge named "Nikolov," Ms. Alcorn noted that the documents very clearly note that "Nikolov" was the translator of the document and did not appear to be the judge who signed the document. Additionally, with regard to the Grencik Memorandum's conclusion that no subpoena issued on December 15, 1996 existed, Ms. Alcorn noted that Alexandrov claimed to have received a subpoena on October 20, 1996. Acknowledging that "[t]hese two errors could significantly hurt the case in court," Ms. Alcorn requested a second review of the documents.

Thus, another Memorandum (hereinafter, the Hazel Memorandum) dated September 30, 1998—the same day as the hearing and decision in this case—was issued "From: Embassy Sofia, Consular Section, Mike Hazel—Vice Consul." The Hazel...