Kllokoqi v. Gonzales, 03-3508.

• Decision Date: 12 December 2005
• Docket Number: No. 03-3508.,03-3508.
• Citation: 439 F.3d 336
• Court: U.S. Court of Appeals — Seventh Circuit
• Parties: Xhevgjet KLLOKOQI, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States,<SMALL><SUP>1</SUP></SMALL> Respondent.

Page 336

439 F.3d 336

Xhevgjet KLLOKOQI, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States,¹ Respondent.

No. 03-3508.

United States Court of Appeals, Seventh Circuit.

Argued September 14, 2004.

Decided December 12, 2005.

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Rebecca M. Reyes (argued), Azulay, Horn & Seiden, Chicago, IL, for Petitioner.

George P. Katsivalis, Department of Homeland Security, Office of the District Counsel, Chicago, IL, Michele Y.F. Sarko, Francis W. Fraser, Department of Justice, Civil Division, John Wood (argued), Department of Justice, Office of the Attorney General, Washington, DC, for Respondent.

Before CUDAHY, ROVNER, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

Xhevgjet Kllokoqi, a citizen of the Kosovo region of the Federal Republic of Yugoslavia and an ethnic Albanian, appeals a final order of the Board of Immigration Appeals (BIA) affirming an immigration judge's (IJ) denial of his application for political asylum and withholding of removal. Because the IJ discredited Kllokoqi without substantial evidence and failed to consider all of Kllokoqi's persecution arguments, we vacate and remand for further proceedings.

I. Background

Xhevgjet Kllokoqi is a native and citizen of the Federal Republic of Yugoslavia, and an ethnic Albanian from the Kosovo region. Kllokoqi was also a member of the LDK (Democratic League of Kosovo), a political party of Kosovar ethnic Albanians. During the time of Kllokoqi's alleged involvement in the LDK party, ethnic Albanians in Kosovo experienced extreme oppression at the hands of ethnic Serbs through Slobodan Milosevic's ruling regime. Kllokoqi testified that the Serbian authorities arrested and detained him on five separate occasions in connection with his opposition involvement. Kllokoqi claims that on each of these occasions the police severely beat him.

Kllokoqi's alleged problems with the Serbian authorities began in March 1993 after his participation in a demonstration for Kosovar independence and against the persecution of Albanian teachers. The Serbian authorities arrested Kllokoqi and sentenced him to 90 days in jail. He claims he served 45 days and was released after the Serbian authorities beat him severely enough to destroy his left testicle. Because of this beating, Kllokoqi was bed-ridden for 40 days and could not graduate from high school on time. He testified that he finished his final exams in August, but was issued a diploma with a June graduation date.

Then, on June 2, 1994, Kllokoqi claims he was arrested a second time after protesting continued Serbian control over Kosovo. He testified that during this detention, the police beat him with fists and billy clubs. Kllokoqi further alleged that the Serbian authorities detained him again on August 14, 1994. At that time, the police arrested him for distributing fliers demanding Albanian schools. He said that the police interrogated him and beat him with metal poles for an hour.

Kllokoqi's fourth arrest came on October 19, 1995, for publishing an editorial in a local paper advocating the right of Albanians to celebrate their national flag day publicly. On this occasion, Kllokoqi claims he was detained for seven hours and beaten until he lost consciousness. Kllokoqi's final arrest came on January 27, 1997. He claims the police arrested him while he gave a speech at an LDK demonstration. Kllokoqi alleges that the police beat him, keeping him in custody for one day.

Kllokoqi testified that he received a subpoena on May 20, 1997 but feared for his life and fled to Croatia rather than appear in court. During his eight-month stay in Croatia, Kllokoqi learned that the Yugoslav courts had convicted him in absentia and sentenced him to three years imprisonment for propaganda against the government. Kllokoqi then fled Croatia and arrived in the United States on March 3, 1998.

Kllokoqi applied for asylum in November of 1998. In conjunction with Kllokoqi's application, Dr. David Goldberg of Cook County Hospital evaluated Kllokoqi to determine whether his injuries were consistent with the beatings he had described. In his report submitted to the IJ, Dr. Goldberg concluded that Kllokoqi's injuries were indeed commensurate with his history of torture while imprisoned in Kosovo. More specifically, Dr. Goldberg found the absence of Kllokoqi's left testicle consistent with a "reported scrotal injury with post-trauma involution of the testicle." Also, Dr. Goldberg opined that the lesions on Kllokoqi's shins were "consistent with the history of being struck on the shins by a round metal pole."

The other expert in this case was the government's forensic document examiner, Gideon Epstein. Epstein examined three pieces of evidence Kllokoqi presented in support of his application for asylum: Kllokoqi's warrant, his subpoena, and his Yugoslav identification card. Epstein authenticated the identification card but could not authenticate the other documents because the government's laboratory did not have originals for comparison. Epstein concluded however, that the warrant and subpoena were altered. Epstein opined that someone removed toner and replaced it with other writing, someone hand-drew a portion of a seal, and someone photocopied the documents, which, he said, was an unusual way to produce official forms.

Although Epstein found the evidence of alteration and the use of a photocopier suspicious and unusual, he could not state conclusively that the documents were not produced this way by the issuing authorities. He also conceded that there could be other reasons for why the toner was missing. For instance, Epstein theorized that the toner on the machine that produced the document might not have been heated properly, or the toner could have worn away from creasing the paper.

Kllokoqi had several hearings before the IJ. He answered questions about his political involvement and educational background. Kllokoqi could not remember the name of his high school, and was unclear regarding the language of instruction at this school and whether he took Serbian classes.

Following Kllokoqi's hearings, the IJ denied Kllokoqi's petition for asylum and withholding of removal. The IJ cited a lack of credibility and a failure to show a well-founded fear of future persecution. The IJ made an adverse credibility finding against Kllokoqi because, according to the IJ, Kllokoqi's testimony regarding his education was inconsistent, his Yugoslav subpoena and warrant appeared to have been altered, and his injuries and political involvement were not corroborated with evidence at the hearing.

The IJ acknowledged that these concerns alone might be insufficient to merit an adverse credibility finding but concluded it was proper here in light of a State Department report warning that ethnic Albanians from other regions of the world might pose as Kosovars in an attempt to gain asylum. The IJ also denied the petition because he did not find that Kllokoqi had a well-founded fear of future persecution in the Kosovo region of Yugoslavia. The IJ decided that a change in country circumstances since 1998 meant Kllokoqi was no longer in danger of persecution.

The BIA affirmed the IJ's decision without opinion.

II. DISCUSSION

A. Standard of Review

Because the BIA affirmed the IJ's order without opinion, this court reviews the IJ's credibility determination and order denying asylum directly. Ememe v. Ashcroft, 358 F.3d 446, 450 (7th Cir.2004).

The IJ's adverse credibility determination is subject to the substantial evidence standard of review and must be "supported by `specific, cogent reasons ... [that] bear a legitimate nexus to the finding.'" Ahmad v. INS, 163 F.3d 457, 461 (7th Cir.1999) (quoting Nasseri v. Moschorak, 34 F.3d 723, 726 (9th Cir.1994), overruled on other grounds by Fisher v. INS, 79 F.3d 955 (9th Cir.1996)). We will not overturn adverse credibility determinations simply because the evidence might support an alternate finding. Ahmad, 163 F.3d at 461 (citing Arkansas v. Oklahoma, 503 U.S. 91, 113, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992)). However, we shall not "uphold `credibility determinations based on speculation or conjecture, rather than evidence in the record.'" Korniejew v. Ashcroft, 371 F.3d 377, 383 (7th Cir. 2004) (quoting Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002)).

Like an adverse credibility determination, we review the denial of a grant of asylum under the substantial evidence standard. Lin v. Ashcroft, 385 F.3d 748, 751 (7th Cir.2004). "[W]e uphold the IJ's determination if it is `supported by reasonable, substantial, and probative evidence on the record considered as a whole.'" Id. at 751 (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)); see also Ahmed v. Ashcroft, 348 F.3d 611, 615 (7th Cir.2003). Although our review of the agency determination is highly deferential and we may not reverse merely because we might have decided the case differently, Yadegar-Sargis v. INS, 297 F.3d 596, 601 (7th Cir.2002) (citation omitted), we will not "automatically yield to the IJ's conclusions when they are drawn from insufficient or incomplete evidence." Georgis v. Ashcroft, 328 F.3d 962, 968 (7th Cir.2003).

B. Adverse Credibility Determination Flawed

We find that the IJ's adverse credibility finding is not supported by specific, cogent reasons that bear a legitimate nexus to the IJ's adverse credibility determination. The IJ's adverse credibility ruling is based on three primary concerns. First, Kllokoqi's alleged vague and inconsistent testimony about his education. Next, the purportedly fraudulent subpoena and warrant submitted by Kllokoqi. Finally, Kllokoqi's alleged failure to submit supporting evidence to corroborate the details of his alleged activities and mistreatment.

The IJ found several aspects of Kllokoqi's testimony about his education inconsistent and suspicious: Kllokoqi did not remember the name of...