Durgac v. Gonzales, 04-2269.

• Decision Date: 05 December 2005
• Docket Number: No. 04-2269.,04-2269.
• Citation: 430 F.3d 849
• Parties: Cahit DURGAC and Ozgur Yasar, Petitioners, v. Alberto GONZALES, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

430 F.3d 849

Cahit DURGAC and Ozgur Yasar, Petitioners, v. Alberto GONZALES, Attorney General of the United States, Respondent.

No. 04-2269.

United States Court of Appeals, Seventh Circuit.

Argued August 3, 2005.

Decided December 5, 2005.

Michael J. Summerhill (argued), Michael J. Summerhill, Katten Muchin Rosenman, Chicago, IL, for Petitioners.

Karen Lundgren, Department of Homeland Security, Office of the District Counsel, Chicago, IL, William D. Brighton (argued), Department of Justice Environmental Enforcement Section, Washington, DC, for Respondent.

Before KANNE, WOOD, and SYKES, Circuit Judges.

WOOD, Circuit Judge.

Cahit Durgac, a Kurdish university student from Turkey, applied for asylum on behalf of himself and his wife, Ozgur Yasar, contending that he was detained and beaten by the Turkish security services because he formed a Kurdish study group. The Immigration Judge (IJ) denied the application, finding that Durgac was not credible and that he did not have a well-founded fear of future persecution. The Board of Immigration Appeals (BIA) affirmed without opinion. Because we conclude that the reasons the IJ gave for rejecting Durgac's credibility do not, even under deferential review, support his conclusion, we grant the petition for review and remand for further proceedings.

I

At his immigration hearing (which also covered Yasar as a derivative applicant), Durgac recounted the following sequence of events. In late 2000, upon returning to Turkey from a four-month visit to the United States, he founded a study group dedicated to learning more about his Kurdish heritage. The group was comprised mostly of other Kurdish students, but several ethnic Turks were also members, including Durgac's future wife Ozgur Yasar. The students openly met either in the cafeteria at the University of Erciyes in Nevsehir or, less frequently, in a member's home to discuss Kurdish politics, literature, and history, and to brush up on their Kurdish language skills, which were rusty because of restrictions the Turkish government places on speaking Kurdish in public. The group's activities, and in particular their uninhibited use of the Kurdish language, soon attracted the attention of police officers at the university. The police "ke[pt] a close eye" on the group, as did a number of Turkish nationalist students who, according to Durgac, swore at members of the group and put psychological pressure on them. On several occasions, there were physical confrontations between the group members and the rival students, including a fistfight between Durgac and a nationalist student in early February 2001.

About a month later, as Durgac was walking from the university to his apartment, a police car pulled up and two officers jumped out, grabbed him by the neck, and dragged him into the car. The officers took him to a police station. There, according to his testimony, they "took me into a room where they continued to swear at me and punch me and hit me in the back, and then they blindfolded me." The police held him for 18 days, fed him "dirty food and water," and beat him severely three times, striking him repeatedly in the back, stomach, and knees. Although the officers did not question him or demand to know his name, he saw them take his identification card from his wallet just before he was blindfolded. They "hurled insults" at him, told him that he "needed to accept the authority of the state," and called him a "traitor" because his brother had sought asylum in Great Britain. (Durgac's brother fled Turkey in 1994 because of his membership in several Kurdish groups and was apparently granted refugee status in the United Kingdom in 2000. Durgac testified that following his brother's departure, he and his parents often noticed the police watching them.)

The police released Durgac in mid-March 2001. At that time, they warned him not to meet with his Kurdish study group and to stop dating Yasar because she is not Kurdish. Durgac heeded the first part of that advice, in part because he heard that another member of the group had suffered an ordeal similar to his, but his problems continued. He began receiving threats from several of the nationalist students, who wanted him to inform on his friends. Durgac testified that he was afraid to go to the police, because they were in league with the nationalists and might again detain and beat him. Several weeks after his release, he concluded that he had no choice but to leave Turkey. He applied for the renewal of his passport. Although there were "some difficulties" and the process took longer than usual, he received it in May and he left for the United States on June 1.

After listening to this testimony, the IJ denied Durgac's application, finding that he had failed to provide "credible probative evidence." His first and principal reason for this decision was his skepticism that the police would single out someone who was merely a member of a Kurdish study group. As the IJ put it, "The respondent was not an activist supporting Kurdish rights, was not outspoken, did not make public appearances or speeches against the Turkish government, but simply met with friends privately to discuss Kurdish history and language." The IJ also provided five additional reasons for his adverse credibility finding: (2) he found it suspicious that the officers did not interrogate Durgac or ask him his name; (3) he noted that Durgac had been able to leave Turkey without difficulty; (4) Durgac had testified inconsistently about which branch of the police had detained him; (5) the IJ thought it "conspicuous" that Durgac was unable to provide any evidence corroborating the fact of his detention; and (6) he did not believe that the local police would have had any information about Durgac's brother at the time Durgac was detained.

The BIA affirmed the IJ's decision without opinion. At the same time, it denied Durgac's motion to remand in order to present new evidence, including additional human rights reports from Amnesty International, the United Nations, and the British and Canadian governments. Durgac filed a timely petition for review with this court. Later, we granted a stay of removal pending the resolution of the petition.

II

In order to qualify for asylum, Durgac must demonstrate that he meets the statutory definition of "refugee," which in turn requires him to show that he is unable or unwilling to return to Turkey "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. § 1101(a)(42)(A). When, as here, the BIA affirms an IJ's ruling without opinion, this court reviews the IJ's decision. See Soumahoro v. Gonzales, 415 F.3d 732, 736 (7th Cir.2005); Lin v. Ashcroft, 385 F.3d 748, 751 (7th Cir.2004). We review the IJ's decision under the deferential substantial evidence test and will reverse only if the evidence compels a different result. Mitreva v. Gonzales, 417 F.3d 761, 764 (7th Cir.2005); Balogun v. Ashcroft, 374 F.3d 492, 498 (7th Cir.2004). As one would suspect from that standard, outright reversal is almost never called for. More commonly, petitions for review will be granted when the court concludes that there is more that must be done at the agency level before a final conclusion on an asylum application is possible. That is the context in which the rule requiring the IJ's credibility findings to be supported by specific, cogent reasons that are based in substantial evidence should be understood. See Lin, 385 F.3d at 751.

We turn therefore to a review of the reasons the IJ gave here for rejecting Durgac's petition. First, the IJ was skeptical that the activity of meeting privately with others to study Kurdish culture would elicit a hostile response from the Turkish government. But, to begin with, this overlooks the fact that most of the group's meetings were not in private; they were in the university cafeteria in full view of others, including the unsympathetic nationalist students. The State Department Country Report for 2002 confirms that similar expressions of Kurdish culture have led to mistreatment by the Turkish government. It comments, for example, that "Kurds who publicly or politically asserted their Kurdish identity or publicly espoused using Kurdish in the public domain risked public censure, harassment, or prosecution." It goes on to list the examples of a 14-year-old boy who was detained and beaten by authorities merely for saying that he was "proud to be a Kurd," and four parents who were imprisoned for petitioning for Kurdish-language education for their children. The Report also describes police interference with Kurdish groups: "Police exerted pressure against Kurdish cultural groups and hindered their activities, and local officials monitored and often interrupted their cultural events." This material directly corroborates Durgac's narrative.

The IJ's second reason for disbelieving Durgac's account rested on Durgac's statement...