UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-2527
NUSRET CURUMI,
Petitioner,
versus
JOHN ASHCROFT,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A78-286-971)
Argued: November 30, 2004 Decided: January 11, 2005
Before WILKINS, Chief Judge, SHEDD, Circuit Judge, and Norman K.
MOON, United States District Judge for the Western District of
Virginia, sitting by designation.
Vacated and remanded by unpublished opinion. Chief Judge Wilkins
wrote the opinion, in which Judge Shedd and Judge Moon joined.
ARGUED: Emily Michiko Morris, JONES DAY, Washington, D.C., for
Petitioner. Anthony Cardozo Payne, UNITED STATES DEPARTMENT OF
JUSTICE, Office of Immigration Litigation, Washington, D.C., for
Respondent. ON BRIEF: Julia C. Ambrose, JONES DAY, Washington,
D.C., for Petitioner. Peter D. Keisler, Assistant Attorney
General, Civil Division, Linda S. Wendtland, Assistant Director,
Rena I. Curtis, UNITED STATES DEPARTMENT OF JUSTICE, Office of
Immigration Litigation, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
WILKINS, Chief Judge:
Nusret Curumi petitions for review of an order of the Board of
Immigration Appeals (BIA) affirming an immigration judge’s opinion.
The immigration judge (IJ) found Curumi’s testimony incredible and,
based upon this finding, denied his claims for asylum, withholding
of deportation, and relief under the United Nations Convention
Against Torture. Because we conclude that the IJ’s adverse
credibility determination, although supported by substantial
evidence, is not by itself a sufficient basis for the denial of
relief, we grant the petition for review, vacate the order of the
BIA, and remand for reconsideration.
I.
The following are the factual assertions made in Curumi’s
asylum application.1 Curumi is a native of Albania and grew up in
the city of Luzii Vogel. His family was classified by the ruling
communist regime as “kulak”--enemies of the government. Curumi was
a member of the Democratic Party and was involved in a student
group in the Albanian capital of Tirana (approximately 40 miles
from Luzii Vogel), where he took correspondence courses. In 1991,
he was arrested following a protest in Tirana and was held for 24
hours, during which time he was beaten by the police. Upon his
1
At the time of the immigration proceedings, Curumi spoke
little or no English. Accordingly, all filings, interviews, and
testimony were facilitated by interpreters.
2
return to Luzii Vogel, he was arrested and held for three days,
during which time he was again beaten by police.
The Democratic Party came to power in 1992, and Curumi was
rewarded for his loyalty with a small store, which he converted
into a billiards parlor. As it became clear to Curumi that the new
regime was corrupt, he began to speak out against it. As a result,
police harassed Curumi’s customers, and he was arrested twice in
1992. He was beaten during both arrests; during the first, his arm
was broken.
Curumi went to Italy in 1993 and spent a year working there.
When his employment contract ended, he returned to Albania and
opened another business. Subsequently, Curumi and others began
criticizing government-sponsored investment schemes that routinely
failed. (Curumi himself invested and lost the equivalent of U.S.
$5,000 in one of the schemes.) In response, police repeatedly
harassed Curumi at his business, sometimes threatening to kill him.
He was also arrested and jailed overnight in 1995, during which
time police labeled him a traitor for opposing the government.
In 1997, police came to Curumi’s home to arrest him. Finding
Curumi absent, they arrested his father instead. Curumi
surrendered to the police the next day in exchange for his father’s
release. He was held for three days, during which time he was
beaten. The ostensible reason for the arrest was the fact that
Curumi’s automobile had been found abandoned; however, no charges
3
were filed. Shortly after this incident the Curumi family moved to
Durres, Albania, in an effort to escape harassment.
Curumi ultimately became disaffected with the Democratic Party
and became loyal to a faction of the party headed by Azem Hajdari.
He attended meetings in Kavaje, Albania, where he participated in
protests. In July 2000, he was arrested after one such protest and
jailed for three days. He was then transferred to a prison in
Durres, where he was held for 25 days. During this detention,
Curumi was beaten, and he witnessed the torture of other prisoners
through extraction of teeth with a rifle barrel and forced sexual
acts.
In August 2000, having been warned by a cousin on the police
force that his murder was being planned, Curumi entered the United
States on a false passport. Upon arrival in Chicago, Curumi told
immigration officials that his passport was false and that he
wished to obtain asylum. Thereafter, he formally sought asylum,
see 8 U.S.C.A. § 1158 (West 1999 & Supp. 2004), withholding of
deportation, see 8 U.S.C.A. § 1231(b)(3) (West 1999), and relief
under Article 3 of the United Nations Convention Against Torture
(CAT), see United Nations Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, adopted Dec.
10, 1984, art. 3, 23 I.L.M. 1027, 1028, 1465 U.N.T.S. 85, 114.
Following a hearing at which Curumi testified, the IJ denied all
relief, concluding that Curumi’s testimony was not credible.
4
II.
We turn first to the BIA’s determination that Curumi is not
entitled to asylum or withholding of deportation. With certain
exceptions not relevant here, asylum is available to one who can
demonstrate that he is a “refugee,” 8 U.S.C.A. § 1158(b)(1), i.e.,
that he is “unable or unwilling” to return to his native country
“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.A. § 1101(a)(42)(A)
(West 1999). An applicant who demonstrates past persecution is
entitled to a rebuttable presumption that he has a well-founded
fear of future persecution. See 8 C.F.R. § 208.13(b)(1) (2004).
An applicant who cannot demonstrate past persecution can establish
a well-founded fear of persecution by demonstrating that he has a
subjectively genuine fear of persecution and that a reasonable
person under the circumstances would fear persecution. See Blanco
de Belbruno v. Ashcroft, 362 F.3d 272, 284 (4th Cir. 2004).
The standard for demonstrating entitlement to withholding of
removal is similar to, but higher than, the standard for asylum.
See Lukwago v. Ashcroft, 329 F.3d 157, 182 (3d Cir. 2003). Success
on a withholding of removal claim requires the alien to demonstrate
that it is more likely than not that he would be persecuted on the
basis of “race, religion, nationality, membership in a particular
social group, or political opinion.” 8 U.S.C.A. § 1231(b)(3)(A);
5
see Ambartsoumian v. Ashcroft, 388 F.3d 85, 88 (3d Cir. 2004). As
with an asylum claim, a showing of past persecution creates a
rebuttable presumption that the applicant will be persecuted if
returned to his native country. See 8 C.F.R. § 208.16(b)(1)
(2004).
We must affirm the decision of the BIA if it is “supported by
reasonable, substantial, and probative evidence on the record
considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992) (internal quotation marks omitted). To obtain reversal,
Curumi must demonstrate “that the evidence he presented was so
compelling that no reasonable factfinder could fail to find the
requisite fear of persecution.” Id. at 483-84. Credibility
determinations of the IJ and BIA are entitled to deference so long
as they are supported by substantial evidence. See Figeroa v. INS,
886 F.2d 76, 78 (4th Cir. 1989); see also Mastro v. Apfel, 270 F.3d
171, 176 (4th Cir. 2001) (stating that substantial evidence
“consists of more than a mere scintilla of evidence but may be
somewhat less than a preponderance” (internal quotation marks
omitted)). “[A] trier of fact who rejects a witness’s positive
testimony because in his or her judgment it lacks credibility
should offer a specific, cogent reason for ... disbelief.”
Figeroa, 886 F.2d at 78 (internal quotation marks omitted).2
2
Curumi attempts to turn the IJ’s credibility finding into a
legal error (subject to de novo review) by asserting that the IJ
applied an incorrect legal standard. The IJ clearly stated the
6
Perfect consistency is not required of an asylum applicant; the BIA
has acknowledged that those who flee persecution may not have
precise recall. See, e.g., In re B-, 21 I & N Dec. 66, 70 (BIA
1995) (concluding that applicant’s testimony was not incredible
simply because he was unable to recall precise dates).
Curumi maintains that the discrepancies noted by the IJ as
supporting her adverse credibility determination are either
nonexistent or easily explained. While we agree with Curumi that
not all of the cited discrepancies support the adverse credibility
determination, ultimately we conclude that there is substantial
evidence in the record to support the IJ’s finding that Curumi’s
testimony was not credible.
The IJ noted inconsistencies in the following areas:
Education: On his asylum application, Curumi indicated that
he attended high school from September 1984 until May 1988. In
supplemental materials, Curumi indicated that he attended
correspondence courses in Tirana, which led to his involvement in
the student protest group. The IJ noted that at the hearing,
Curumi testified that “he attended night school for five years,
graduated in 1989, and then studied one-and-a-half years of
college-level agricultural studies as a correspondence student.”
J.A. 16. The IJ stated that Curumi’s inconsistencies regarding his
correct standard, however. Therefore, there is no legal error and
the only question is whether the IJ’s credibility determination is
supported by substantial evidence.
7
education--including his “omission” of his correspondence studies
from the asylum application--“call into question whether he
attended college, thereby making his political activity as a
university student implausible.” Id.
Detentions: The IJ generally found that Curumi “was
inconsistent in his recollection of the length, general time of
year, and circumstances of his detentions.” Id. She noted
inconsistencies in the following specific areas:
1991 arrest in Tirana: Curumi’s asylum application states
that he was arrested in February 1991 and detained for 24
hours. During the asylum hearing, however, he testified that
the detention lasted only six hours; he further stated that he
could not recall when in 1991 the detention occurred.
Additionally, Curumi testified that during this detention he
observed law enforcement officers torturing other prisoners by
removing their teeth with rifle barrels, but his asylum
application claimed that he observed this and other forms of
torture during a detention in 2000.
Further police contact in 1991: Although Curumi’s asylum
application states that he was arrested in Luzii Vogel almost
immediately after the Tirana detention, he testified at the
asylum hearing that he had no further contact with the police
in 1991. But, he also testified that he was again arrested
near “the end of 1991 or the beginning of 1992” and that
8
during this arrest his arm was broken. Id. at 24. The asylum
application does recount that the police broke Curumi’s arm,
but identifies the date of the incident as April or May 1992.
1992-1993: Curumi’s asylum application states that in July or
August 1992 he “was arrested and imprisoned .... Police
wearing black masks beat me with batons and lengths of rubber
hose.” Id. at 67. During the hearing, however, Curumi
testified that he was called to talk with the chief of police,
but not imprisoned, between the breaking of his arm in 1991-92
and when he went to Italy in 1993.
Detention after Hajdari meeting: In his asylum application,
Curumi stated that he was arrested after a July 2000 meeting
of the Hajdari faction. According to the asylum application,
Curumi was detained for three days in Kavaje, then transferred
to a prison in Durres, where he was detained for 25 days.
During the hearing, however, Curumi testified that he was held
for 24 hours in Kavaje, then for 27 days in Durres. When
questioned about this inconsistency, Curumi asserted that the
asylum application was incorrect--his three-day detention in
Kavaje took place in 1992.
The IJ concluded that Curumi’s “inconsistencies and omissions,
and his failure to provide a plausible explanation for them, cast
doubt on whether he experienced persecution in the form of
detention.” Id. at 17.
9
Democratic Party membership: In his asylum application,
Curumi stated that he “never officially renounced” his party
membership but that he “grew disenchanted” with the party and
became a part of Hajdari’s faction. Id. at 65. During the asylum
hearing, however, Curumi testified that he resigned his membership
from the Democratic Party, stopped paying his dues, and turned in
his party identification. When questioned about the discrepancy,
Curumi said he did not remember his asylum application saying that
he never renounced his party membership.
We have reviewed the record in its entirety, and in our view
the IJ made too much out of some perceived discrepancies. For
example, the IJ doubted Curumi’s involvement in the student
movement because his asylum application “omitted his studies as a
correspondence student and was inconsistent with his testimony.”
Id. at 16. However, Curumi’s participation in correspondence
studies was noted in his supplemental materials, and he provided
what appears to be a rational explanation for his failure to list
it on the asylum application (i.e., that Albanians do not consider
correspondence studies to be “school”). There was thus no
omission, and the differences between the asylum application and
Curumi’s testimony are not as significant as the IJ made them out
to be.
The same view may be taken of Curumi’s inconsistent
recollection of his 1991 arrest and detention in Tirana. It
10
appears to be undisputed that Curumi was detained and severely
beaten. Nevertheless, the IJ seized on Curumi’s inability to
recall the length of his detention. While under some circumstances
an inability to recall the particulars of an event may provide a
basis for an adverse credibility determination, it is important to
bear in mind that Curumi was detained and beaten on numerous
occasions for varying lengths of time. The fact that he may have
confused the particulars of these traumatic events is not, alone,
a death knell for his credibility.3 See Zubeda v. Ashcroft, 333
F.3d 463, 476 (3d Cir. 2003) (“Caution is required [in basing a
credibility determination on differences between an asylum
application and hearing testimony] because of the numerous factors
that might make it difficult for an alien to articulate his/her
circumstances with the degree of consistency one might expect from
someone who is neither burdened with the language difficulties, nor
haunted by the traumatic memories ....”).
Despite these concerns, we nevertheless conclude that the IJ’s
adverse credibility determination is supported by substantial
evidence. For example, we cannot accept Curumi’s assertion that
3
The IJ made a point of noting that a doctor told Curumi his
arm was “fractured,” while Curumi stated that it was “broken.” It
is not clear that the IJ relied on this difference in making her
credibility determination. To the extent she did so, however, she
erred; “fractured” and “broken” are synonyms. Compare Random House
College Dictionary 171 (rev. ed. 1980) (defining “broken” in part
as “ruptured; torn; fractured” (emphasis added)), with id. at 524
(defining “fracture” in part as “the breaking of a bone”).
11
the discrepancies concerning police detentions following the
detention in Tirana, including the date of his broken arm, are
“exceedingly minor inconsistencies” that “do nothing to detract
from [his] credibility.” Opening Br. of Pet’r Nusret Curumi at 27.
To the contrary, these inconsistencies may plausibly be viewed as
indications of Curumi’s inability to keep his stories straight.
The same may be said of Curumi’s vastly different statements
regarding his Democratic Party membership, particularly when viewed
in light of his failure to offer a cogent explanation for the
differences.
The question remains, however, whether the adverse credibility
determination is necessarily fatal to Curumi’s asylum and
withholding of deportation claims. We faced a nearly identical
situation in Camara v. Ashcroft, 378 F.3d 361 (4th Cir. 2004), and
answered that question in the negative. We find that Camara is
controlling here and that we must remand for reconsideration.
In Camara, as here, the IJ denied relief based upon an adverse
credibility determination that was supported by substantial
evidence. See id. at 368-69. While we acknowledged that an
adverse credibility determination is often fatal to an asylum
claim, see id. at 369, we noted that when “the applicant can prove
actual past persecution, ... a presumption arises that she has the
requisite level of fear of persecution, and thus she need not prove
the subjective component of ‘well-founded fear,’” for which
12
credibility is essential, id. at 369-70. Because Camara had
presented independent evidence that established past persecution
for her political beliefs, we concluded that remand was necessary:
This independent evidence, taken together, provided
strong circumstantial evidence that Camara was imprisoned
for a political expression of opposition to the ruling
government. The IJ completely ignored this evidence,
instead rejecting Camara’s asylum petition solely on the
basis of the adverse credibility determination.
....
In sum, while we do not disturb the IJ’s factual
finding that Camara’s recollections may not have been
wholly trustworthy, we nevertheless conclude that the IJ
erroneously overlooked Camara’s other evidence in denying
her application for asylum and for withholding of
removal. Accordingly, we vacate the BIA’s order on these
claims ... and remand for further consideration.
Id. at 370-71.
Here, as in Camara, there is substantial independent evidence
of past persecution that was not considered by the IJ. The most
compelling of this evidence consists of two medical reports
indicating that Curumi was beaten by police. Arrest reports
corresponding to the dates of the medical reports indicate that
Curumi was arrested for engaging in anti-government protests.
Curumi also presented affidavits from psychologist Karen
Hanscom and physician Bruce Slater. Dr. Hanscom diagnosed Curumi
as suffering from depression and post-traumatic stress disorder
(PTSD), the symptoms of which included avoidance of police, fear of
being killed, hypervigilance, and problems with concentration and
memory. She characterized these symptoms as “consistent with
13
symptoms seen in other individuals who have experienced physical
and emotional torture and trauma.” J.A. 36. Dr. Hanscom further
stated that Curumi’s depression and PTSD “are the direct result of
the trauma and the physical and psychological abuses that
Mr. Curumi experienced in Albania. I find the symptoms to be
consistent with the history of trauma and torture that he reports.”
Id. For his part, Dr. Slater found scars on Curumi’s legs and
scalp, the latter of which was “consistent with blunt trauma.” Id.
at 72. Dr. Slater concluded that Curumi showed signs of PTSD “as
well as physical evidence of beating with blunt objects, consistent
with the history that he has given.” Id. at 73.
Additionally, Curumi presented evidence that pro-democracy
activists in Albania regularly suffer persecution. Nicholas Pano,
a former history professor who is an expert regarding Albanian
politics, stated in an affidavit that “the events that Nusret
Curumi has described ... are consistent with political events and
conditions in Albania at the times noted in his statements.” Id.
at 38. The record also contains a 2001 State Department report on
Albania which indicates that local police officers arbitrarily
detain individuals and regularly engage in beatings. And, a May
2001 report by Amnesty International indicates that Democratic
Party supporters are routinely detained and beaten by police.
This documentary evidence, and those portions of Curumi’s
testimony that the IJ did not specifically reject, provide
14
substantial support for a finding that Curumi has suffered
persecution at the hands of the Albanian government. Cf. Camara,
378 F.3d at 370 (concluding that arrest report, party membership
card, letter from party leader, arrest warrant, and State
Department report “provided strong circumstantial evidence”
supporting claim of past persecution). If accepted, this evidence
would support both a claim for asylum and a claim for withholding
of removal. See id. Because, as in Camara, the IJ failed to
consider this independent evidence, we vacate the decision of the
BIA and remand for further proceedings.
III.
Curumi also sought relief under the CAT. As a signatory to
the CAT, the United States has pledged “not [to] expel, extradite,
or otherwise effect the involuntary return of any person to a
country in which there are substantial grounds for believing the
person would be in danger of being subjected to torture.” Lopez-
Soto v. Ashcroft, 383 F.3d 228, 239 (4th Cir. 2004) (internal
quotation marks omitted). In order to establish eligibility for
relief under the CAT, Curumi must demonstrate that “it is more
likely than not” that he would be tortured if returned to Albania.
Id. at 239-40 (internal quotation marks omitted). “Torture is
defined as any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person ... for
any reason based on discrimination of any kind ... by or at the
15
instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity.” 8 C.F.R.
§ 208.18(a)(1) (2004).
The IJ denied relief under the CAT based solely on “the
reasons cited above in the denial of Asylum,” J.A. 19, i.e.,
Curumi’s lack of credibility. However, “[b]ecause there is no
subjective component for granting relief under the CAT, [an]
adverse credibility determination ... would not necessarily defeat
[a] CAT claim.” Camara, 378 F.3d at 371. The independent evidence
that supports Curumi’s asylum claim likewise supports his claim
under the CAT. See id. at 371-72; id. at 372 (noting that IJ
violated INS regulations by failing to consider independent
evidence demonstrating likelihood of torture); see also
Ramsameachire v. Ashcroft, 357 F.3d 169, 184 (2d Cir. 2004) (“[W]e
hold that the INS may not deny an alien’s CAT claim solely on the
basis of its determination that the applicant’s testimony is not
credible.”). We therefore vacate the decision of the BIA as to the
denial of relief under the CAT and remand for further proceedings.
IV.
For the reasons set forth above, we vacate the order of the
BIA and remand for further proceedings. Additionally, as we did in
16
Camara, we recommend assignment to a different immigration judge on
remand.
VACATED AND REMANDED
17