FILED
NOT FOR PUBLICATION NOV 23 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALEKS DUSHI, No. 06-71272, 06-74597
Petitioner, Agency No. A079-433-494
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 8, 2010
Pasadena, California
Before: PREGERSON, D.W. NELSON and IKUTA, Circuit Judges.
Aleks Dushi (“Dushi”), a native and citizen of Albania, petitions for review
of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s (“IJ”) decision denying his application for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”).
We have jurisdiction under 8 U.S.C. § 1252. The BIA issued a written decision
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
and adopted the IJ’s adverse credibility determination. We therefore review the
BIA’s decision. See Baghdasaryan v. Holder, 592 F.3d 1018, 1022 (9th Cir.
2010); see also Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006). We grant
the petition and remand.
I. Credibility
Credibility determinations are reviewed under the substantial evidence
standard. Soto-Olarte v. Holder, 555 F.3d 1089, 1091 (9th Cir. 2009). Under the
substantial evidence standard, credibility findings are upheld unless evidence
compels a contrary result. See Don v. Gonzales, 476 F.3d 738, 741 (9th Cir. 2007).
The BIA must articulate a legitimate basis on which to question an applicant’s
credibility and must offer specific and cogent reasons for any stated disbelief. See
Gui v. INS, 280 F.3d 1217, 1225 (9th Cir. 2002). “[W]hen each of the IJ’s or
BIA’s proffered reasons for an adverse credibility finding fails, we must accept a
petitioner’s testimony as credible.” Kaur v. Ashcroft, 379 F.3d 876, 890 (9th Cir.
2004).
2
We recite the facts only as needed to explain our decision,1 and we conclude
that substantial evidence does not support the BIA’s adverse credibility
determination.
Because Dushi filed his claim for asylum before May 11, 2005, we apply the
pre-REAL ID Act standards for adverse credibility findings. See Sinha v. Holder,
564 F.3d 1015, 1021 n.3 (9th Cir. 2009) (applying pre-REAL ID Act standards
because petitioner’s asylum application was filed before May 11, 2005). Under
our pre-REAL ID Act standard, “[m]inor inconsistencies in the record that do not
relate to the basis of an applicant’s alleged fear of persecution, [do not] go to the
heart of the asylum claim, or [do not] reveal anything about an asylum applicant’s
fear for his safety are insufficient to support an adverse credibility finding.”
Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 660 (9th Cir. 2003) (emphasis
1
Dushi testified that his family has been active in the anti-communist
movement in Albania. The Communist Party confiscated his family’s land,
murdered his uncle, and arrested his father on charges of agitation and propaganda.
A bomb was thrown into Dushi’s house, and two police officers approached
Dushi’s father two days later and asked, “Are you still alive?” They threatened to
kill Dushi if his father remained in the Democratic Party. Dushi testified that he
has personally suffered because of his work with the Democratic Party. On his
way home from a Democratic Party meeting, Dushi and two of his friends were
shot at from a car driving by. Dushi’s friend was killed, and his other friend was
injured. A police officer was charged with the killing. Dushi also testified that the
police arrested him on three occasions. Each time, Dushi was badly beaten and
warned to stop his political activities. After the third arrest and beating, Dushi fled
Albania and sought political asylum in the United States.
3
added). Discrepancies that are not attempts to enhance claims of persecution
generally have no bearing on credibility. Singh v. Ashcroft, 362 F.3d 1164, 1171
(9th Cir. 2004).
The BIA affirmed the IJ’s adverse credibility finding based on four
inconsistencies between Dushi’s airport interview and his asylum proceedings.
Two of these inconsistencies do not go to the heart of Dushi’s asylum claim. First,
whether Dushi bought his fake passport in Albania or in France does not relate to
the merits of Dushi’s asylum claim. See Zhu v. Mukasey, 537 F.3d 1034, 1043 (9th
Cir. 2008) (“The inconsistency about whether [petitioner] acquired her passport in
Hong Kong or in Chile. . . fails to go to the heart of her asylum claim.”). Second,
whether Dushi changed his name in Albania or when he converted to the Greek
Orthodox faith in Greece also does not relate to the merits of Dushi’s asylum
claim. Further, Dushi explained that he considered the name change in Albania to
be only on “paper” and that it was not until he converted to the Greek Orthodox
faith and took a Christian name that he felt he had changed his name. Because
these two inconsistences do not go to the heart of Dushi’s asylum claim and do not
relate to the persecution he alleges, the BIA improperly relied on them to find
Dushi not credible.
4
Additionally, the IJ must consider and address the applicant’s explanation
for an identified discrepancy. See Soto-Olarte v. Holder, 555 F.3d 1089, 1095 (9th
Cir. 2009). Here, the IJ did not address Dushi’s plausible explanations for his
other two inconsistencies.
In his merits hearing, Dushi explained that he was in a terrible mental state
when he arrived in the United States, having just fled Albania, and that he was
frightened of being deported. Dushi testified that as a result, he did not remember
what he told the immigration officer at the airport.
Even though the IJ did not address Dushi’s explanation, the BIA did and
concluded that his explanation was “patently inconsistent” with his purpose of
coming to this country to seek asylum. However, we “hesitate to view statements
given during airport interviews as valuable impeachment sources because of the
conditions under which they are taken and because a newly-arriving alien cannot
be expected to divulge every detail of the persecution he or she sustained.” Li v.
Ashcroft, 378 F.3d 959, 962-63 (9th Cir. 2004); see Singh v. INS, 292 F.3d 1017,
1021-24 (9th Cir. 2002). Moreover, it is perfectly understandable that Dushi
would be reluctant to fully disclose his circumstances during the airport interview,
given his experience with government officials in Albania. See Singh v. INS, 292
F.3d at 1023 (recognizing that ‘an arriving alien who has suffered abuse during
5
interrogation sessions by government officials in his home country may be
reluctant to reveal such information during the first meeting with government
officials in this country’” (quoting Balasubramanrim v. INS, 143 F.3d 157 (3d Cir.
1998))). Thus, the BIA erred because it did not fully consider the reality of
Dushi’s situation as a newly-arriving refugee who feared being deported.
The BIA also concluded that Dushi was not credible because the doctor’s
report he submitted did not mention his stabbing wound. However, in nearly
identical circumstances we have concluded that the omission of details from a
doctor’s report is “insufficient to uphold an adverse credibility finding.” Singh v.
Ashcroft, 301 F.3d 1109, 1112 (9th Cir. 2002). Additionally, in this case, the
doctor’s report Dushi submitted was prepared by the same doctor in Albania who
told him not to file a complaint against the police officers who beat him. Under
these circumstances, the BIA erred in finding that Dushi was not credible because
this doctor omitted a serious injury from his report.
Last, the BIA erred in requiring corroborative evidence, which, under the
pre-REAL ID Act standard, is only required where the petitioner has failed to
testify credibly. See Ladha v. INS, 215 F.3d 889, 901 (9th Cir. 2000) (affirming
that an “alien’s testimony, if unrefuted and credible, direct and specific, is
sufficient to establish the facts testified without the need for any corroboration”),
6
overruled on other grounds by Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir.
2009) (en banc) (per curiam); see also Kataria v. INS, 232 F.3d 1107, 1113 (9th
Cir. 2000) (“[T]he BIA may not require independent corroborating evidence from
an asylum applicant who testifies credibly. . . .”). As discussed above, substantial
evidence does not support the IJ’s adverse credibility finding, so Dushi should be
deemed credible. Because corroborative evidence is not required where a
petitioner testified credibly, the BIA erred in finding Dushi not credible because he
failed to submit an affidavit from his aunt in Greece.
Moreover, the IJ erred in not giving Dushi an opportunity to explain why he
had not provided an affidavit from his aunt. See Sidhu v. INS, 220 F.3d 1085, 1091
(9th Cir. 2000); Arulampalam v. Ashcroft, 353 F.3d at 688. The IJ never
specifically requested testimony or an affidavit from Dushi’s aunt and stated for
the first time in her decision that the absence of such evidence from his aunt was a
ground for finding Dushi not credible. Thus, the IJ erred in not providing Dushi an
opportunity to explain why he had not submitted an affidavit from his aunt.
In sum, because the BIA’s determination that Dushi was not credible is not
based on substantial evidence, we grant the petition and remand to the BIA for
further consideration in light of Dushi’s credible testimony. See Guo v. Ashcroft,
361 F.3d 1194, 1201 (9th Cir. 2004).
7
II. Motion to Reopen
Because we grant Dushi’s petition for review, vacate the BIA’s adverse
credibility finding, and remand pursuant to INS v. Orlando Ventura, 537 U.S. 12,
16 (2002) (per curiam), we need not decide whether the BIA erred in denying
Dushi’s motion to reopen based on his submission of new evidence.
III. Conclusion
We GRANT the petition and REMAND to the BIA for further proceedings
to determine whether, accepting Dushi’s testimony as credible, he is
eligible for relief. See, e.g., Singh v. Gonzales, 439 F.3d 1100, 1113 (9th Cir.
2006).
PETITION GRANTED AND REMANDED
8
FILED
Dushi v. Holder, No. 06-74597, 06-71272 NOV 23 2010
MOLLY C. DWYER, CLERK
IKUTA, Circuit Judge, dissenting: U.S. COURT OF APPEALS
Aleks Dushi made crucial misrepresentations in his airport interview. In a
sworn statement at the airport, he claimed that he had never been arrested. But at
his hearing he claimed that he had been arrested three times by the Albanian police.
At the airport, he stated he was living in Greece from 1997 to 2000 working at a
bakery. But at his hearing he claimed that he left Greece in January 1998, and was
in Albania in 1998 and 1999, where he was arrested, and later involved in a
shooting. There were additional problems with Dushi’s testimony. Among other
things, he claimed that in June 2001 he had been arrested by the chief of police,
beaten, kicked, and cut with a knife on his right wrist, resulting in a one-inch
wound which bled heavily and required stitches. But no mention of this allegedly
serious wound, the worst of his claimed injuries, appeared in the medical records
that he submitted. Relying on this and other discrepancies, the BIA and IJ held
that Dushi was not credible.
Our responsibility in reviewing the agency’s adverse credibility decision is a
limited one. We are to determine whether the decision is supported by substantial
evidence and we must uphold the agency’s decision unless no reasonable fact
finder could reach this conclusion. INS v. Elias-Zacarias, 502 U.S. 478, 483–84
1
(1992). In light of the discrepancies in Dushi’s testimony, the agency’s adverse
credibility determination is well supported here.
In order to claim that it is compelled to overturn the agency’s reasonable
determination, the majority must conclude that nothing said by an asylum-seeking
alien at an airport interview counts for purposes of making an adverse credibility
determination. But of course, our cases do not go that far. While we have held
that an airport interview is not a reliable basis for an adverse credibility
determination where the interview is impeded by language difficulties, see Li v.
Ashcroft , 378 F.3d 959, 962–63 (9th Cir. 2004); Singh v. INS, 292 F.3d 1017,
1023 (9th Cir. 2002), no language difficulties were present here, as an Albanian
interpreter participated in Dushi’s airport interview via telephone. Moreover, in a
statement signed under penalty of perjury, Dushi affirmatively indicated that he
understood the questions, that his answers were voluntary, and that he was telling
the truth.
We have also held that under certain limited circumstances, an alien’s
omission of personal or deeply painful experiences in an airport interview cannot
form the basis of an adverse credibility determination. Thus in Paramasamy v.
Ashcroft, we held that a young Tamil woman’s failure to tell the airport interviewer
about her sexual assault by government agents was not evidence supporting an
2
adverse credibility determination, where the asylum officer had not questioned her
on that issue, and she had a natural and reasonable reluctance to discuss it with
male interviewers. 295 F.3d 1047, 1053 (9th Cir. 2002). But here Dushi did not
merely omit information; he affirmatively misrepresented it.
Although Dushi tried to explain away his misstatements by asserting that he
feared to give honest answers at the airport in the event that he was repatriated to
Albania, where Albanian officials would abuse him, an alien’s dishonest
statements are substantial evidence that the alien is not credible, regardless of the
alien’s motivations. We have no authority to formulate a rule that false statements
to an airport interviewer cannot form the basis for an adverse credibility
determination, which would be akin to telling the Executive Branch that airport
interviews of asylum seekers have little or no utility. Given the evidence in the
record, including Dushi’s airport interview, nothing here permits us, let alone
compels us, to overturn the agency’s determination that Dushi is not credible.
The majority also claims that it is compelled to overturn the agency’s
adverse credibility determination because the IJ failed to consider and address
Dushi’s explanation for his dishonest answers and discrepancies in the record. See
Soto-Olarte v. Holder, 555 F.3d 1089, 1095 (9th Cir. 2009). But the record does
not support this claim. At the hearing before the IJ, the government attorney
3
questioned Dushi at length about the misstatements at the airport interview, and
provided him with an opportunity to give explanations. The IJ and the BIA
considered Dushi’s explanations and rejected them, noting that it was unreasonable
for an alien seeking political asylum to misrepresent his prior arrests and
mistreatment by officials in his home country, and that fear did not explain his
misrepresentations about the length of his stay in Greece. Nothing in the record
compels us to overturn this conclusion. Similarly, the IJ and BIA rejected Dushi’s
explanation for the discrepancy between Dushi’s claim that he suffered a serious
knife wound and the failure of his treating physician to mention it. Again, there is
no basis for overturning the agency’s conclusion on this point. Unlike the alien in
Singh v. Ashcroft, 301 F.3d 1109, 1112 (9th Cir. 2002), on which the majority
mistakenly relies, Dushi did not offer hospital records or other reliable evidence to
corroborate his most serious physical injury. In sum, Dushi failed to carry his
burden of explaining the numerous inconsistencies or producing corroborative
evidence to authenticate his version of events. Sidhu v. INS, 220 F.3d 1085, 1090
& n.2 (9th Cir. 2000).
The majority tries to elide the evidence of Dushi’s lack of credibility by
making excuses for him and pointing to allegedly extenuating circumstances. Maj.
Op. 4–6. While the majority could take this approach if it were deciding Dushi’s
4
asylum request in the first instance, it does not have the authority to do so when
reviewing an agency determination for substantial evidence. A fair view of the
record shows that the BIA’s adverse credibility determination was amply supported
by the record. Accordingly, I respectfully dissent.
5