Kourski v. Ashcroft, 03-1742.

• Decision Date: 22 January 2004
• Docket Number: No. 03-1742.,03-1742.
• Citation: 355 F.3d 1038
• Parties: Vassili KOURSKI, Petitioner, v. John ASHCROFT, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

355 F.3d 1038

Vassili KOURSKI, Petitioner, v. John ASHCROFT, Attorney General of the United States, Respondent.

No. 03-1742.

United States Court of Appeals, Seventh Circuit.

Argued December 16, 2003.

Decided January 22, 2004.

Stephen D. Berman (argued), Chicago, IL, for Petitioner.

George P. Katsivalis, Department of Homeland Security, Office of the District Counsel, Chicago, IL, Mark W. Pennak, Catherine Y. Hancock (argued), Department of Justice, Civil Division, Appellate Section, Washington, DC, for Respondent.

Before BAUER, POSNER, and EVANS, Circuit Judges.

POSNER, Circuit Judge.

Vassili Kourski asks us to set aside the order removing (deporting) him from the United States. He was born in Russia, came to the United States in 1996 on a tourist visa, and applied for asylum before his visa expired. He claims to be Jewish, and to have been persecuted in Russia by anti-Semites whom the police either cannot or will not control. The only evidence of his being Jewish that he presented at his removal hearing, besides his own sworn testimony, was a copy of a purported Russian birth certificate, listing his nationality as Jewish. The immigration service determined that it was a forgery. Kourski testified without contradiction that his mother had sent him the document and that he didn't know it was a forgery.

The immigration judge found "that because [Kourski] has not rebutted the conclusions of the Service's expert witness as to the genuineness of his birth certificate, his claim [to being Jewish] is discredited and his testimony is rejected as lacking in credibility. Accordingly, his application for asylum will be denied." In a footnote the immigration judge "also note[d] that [Kourski] did not present any other evidence to corroborate his alleged Jewish nationality including, for example, the testimony or affidavit of his brother who lives in Chicago." The judge nevertheless granted Kourski's motion for voluntary departure on the ground that "the record does not conclusively establish fraud."

The Board of Immigration Appeals affirmed. It remarked that the immigration judge had denied Kourski's application for asylum because Kourski "was found not credible due to his submission of a fraudulent birth certificate." After satisfying itself that the birth certificate was indeed a forgery, the board said that it "agree[d] with the Immigration Judge that [Kourski] was not credible as a result of his having submitted a fraudulent birth certificate in order to corroborate his ethnicity as Jewish and his identity. Without credible testimony, he has failed to meet his burden of proof."

There is a gaping hole in the reasoning of the board and the immigration judge. Suppose that Kourski had merely testified that he was Jewish, without presenting any documentary evidence. The immigration judge might have believed him despite the absence of corroboration, and on that basis have approved his application for asylum, since "the testimony of the applicant [for asylum], if credible, may be sufficient to sustain the burden of proof without corroboration." 8 C.F.R. § 208.13(a); see Georgis v. Ashcroft, 328 F.3d 962, 969 (7th Cir.2003). Jews constitute an ethnic group as well as a religious one. Many Jews are not religious, do not belong to a synagogue, and do not have any documents identifying them as Jews. It is true that the Soviet Union considered Jews a nationality and that Soviet birth certificates list the nationality of the newborn, but many people have lost their birth certificates and Soviet records are in disarray, so it might be impossible to procure a substitute. Failure to tender a birth certificate to prove that one was a Russian Jew would therefore not be decisive evidence that one was not Jewish. Even so, the immigration judge might, on the authority of such cases as Mulanga v. Ashcroft, 349 F.3d 123, 133-34 (3d Cir.2003); Qiu v. Ashcroft, 329 F.3d 140, 153 (2d Cir.2003); Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir.2001), and In re M-D-, 21 I. & N. Dec. 1180, 1184 (BIA 1998), have denied Kourski's application for asylum on the ground that Kourski had failed to provide evidence corroborating testimony by...