In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3508
XHEVGJET KLLOKOQI,
Petitioner,
v.
ALBERTO R. GONZALES, Attorney General
of the United States,1
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A76-868-899
____________
ARGUED SEPTEMBER 14, 2004—DECIDED DECEMBER 12, 2005
____________
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
1
Pursuant to Fed. R. App. P. 43(c), we have substituted Alberto
R. Gonzales for John Ashcroft as the named respondent.
2 No. 03-3508
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 demonstra-
tion 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 authori-
ties 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 distribut-
ing fliers demanding Albanian schools. He said that the
No. 03-3508 3
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 demonstra-
tion. 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 imprison-
ment 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 ex-
amined three pieces of evidence Kllokoqi presented in
4 No. 03-3508
support of his application for asylum: Kllokoqi’s warrant,
his subpoena, and his Yugoslav identification card. Epstein
authenticated the identification card but could not authenti-
cate the other documents because the government’s labora-
tory did not have originals for comparison. Epstein con-
cluded 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 ad-
verse 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 involve-
ment were not corroborated with evidence at the hearing.
No. 03-3508 5
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 Depart-
ment 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 (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)).
6 No. 03-3508
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 (1992)); see also Ahmad
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. 2001) (citation omitted), we will not “automat-
ically 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 con-
cerns. 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 his high school, he gave inconsistent
answers regarding the presence of Serbian teachers in the
school and the language spoken there, and gave conflicting
dates for his graduation and his convalescence following a
beating by Serbian police.
No. 03-3508 7
Kllokoqi argues, and we agree, that these are minor
inconsistencies and that the IJ erred in relying on them to
make an adverse credibility finding. See Gao, 299 F.3d
at 272 (stating that minor discrepancies that do not involve
the “heart of the asylum claim” are not an adequate basis
for an adverse credibility finding) (citation omitted). In light
of the war in the Balkans, as well as the number of trau-
matic and tragic events that have happened to Kllokoqi and
in Kosovo, we are not overly concerned that Kllokoqi could
not recall the name of the high school he attended over ten
years ago. This lapse of memory does not go to the heart of
Kllokoqi’s asylum claim.
However, a lapse in memory can be considered significant
enough to raise serious credibility issues. In Korniejew, this
court upheld an IJ’s adverse credibility ruling where an
applicant claimed she was expelled from college because of
her Jewish faith, then testified inconsistently as to whether
she graduated from college. 371 F.3d at 386. However,
unlike in Korniejew, Kllokoqi’s high school education is
unrelated to his asylum claim, and his failure to remember
the high school’s name amounts to nothing more than a
trivial detail.
Unlike the IJ, we do not think that Kllokoqi’s responses
to questions about whether there were Serbian or Albanian
teachers in his school or what languages classes were
taught in his high school merit an adverse credibility
finding. It seems possible from the record that Kllokoqi
did not understand the questions. When asked about his
classes, Kllokoqi responded, “Most of the classes were in
Albanian but there were a lot of Serbian teachers too. We
had Serbian teachers but the final exams that I took I
gave in Albanian.” It is hard to tell whether Kllokoqi was
saying that he himself had Serbian teachers or just that
there were Serbian teachers in the school. Either way, the
issue is minor and insignificant to the claim.
8 No. 03-3508
What the IJ seems to find most suspicious and inconsis-
tent are Kllokoqi’s responses to questions about his gradua-
tion. Kllokoqi testified that he was arrested in March 1993,
served 45 days of his sentence, and spent another 40 days
recovering from the injury to his scrotum, which left him
unable to walk.
The government argued that Kllokoqi could not have
graduated from high school in June of 1993, as claimed in
his application, if he was bedridden at the time. The IJ
accepted the government’s argument. However, an asylum
application need not be complete and may be supplemented
with testimony. See, e.g., Pop v. INS, 270 F.3d 527, 531-32
(7th Cir. 2001). Kllokoqi supplemented his application by
offering a credible explanation of the inconsistency in dates.
When questioned, Kllokoqi explained that the diploma
listed June as the date issued because that was the usual
graduation date. However, Kllokoqi completed his exams
and actually received his diploma in August. Kllokoqi
explained, “I finished my final exams in August and I was
through with school in August; but I’m not saying literally
that I was in school the whole time.”
Unlike the IJ, we find nothing incredible about this
explanation. We do not see it as an unusual practice for a
school to allow a student to complete graduation require-
ments after the school year has completed, even though
diplomas are printed in advance with an official graduation
date of May or June. It is entirely logical that the school
would have allowed Kllokoqi to complete his examinations
at a later time given his injuries. As such, we find that the
IJ’s adverse credibility finding was improper.
The IJ conceded that the vagueness and inconsistencies
he found might not alone have led him to find Kllokoqi
not credible but decided that they were significant be-
cause he doubted Kllokoqi’s Kosovar identity. He based
his suspicion on the State Department Country Report
for 2000 that warned, “Albanians from other provinces in
No. 03-3508 9
Yugoslavia . . . have attempted to use the situation in
Kosovo to make fraudulent claims.”
This general statement in the Country Report is insuffi-
cient to rebut Kllokoqi’s detailed, specific testimony estab-
lishing his place of origin. State department reports are
entitled to deference, but the IJ must make an individual-
ized determination. Zheng v. Gonzales, 409 F.3d 804, 811
(7th Cir. 2005); Toptchev v. INS, 295 F.3d 714, 723 (7th Cir.
2002). The report serves as a source of good background
information, but it cannot replace the specific testimony of
a credible witness. See, e.g., Bace v. Ashcroft, 352 F.3d 1133,
1139 (7th Cir. 2003) (“[I]t would be improper to find that a
witness’s testimony about specific events could be ‘contra-
dicted’ by a generalized State Department report broadly
discussing conditions in the applicant’s country of origin.”).
Using the generalized Country Report as background and
examining the individual circumstances of Kllokoqi’s case,
there is no evidence to suggest that Kllokoqi is lying about
his identity as a native of Kosovo. He presented a Yugoslav
identification card that verifies he is a native of Kosovo. The
government’s expert determined the card was authentic and
the government does not contest the expert’s finding. The
identification card and the overall consistency of Kllokoqi’s
testimony convinces us that the IJ lacked sufficient reason
to question Kllokoqi’s identity. The IJ’s speculation based
solely on the Country Report cannot sustain an adverse
credibility finding in the absence of any other evidence that
directly refutes the IJ’s finding.
We are also not persuaded by the IJ’s contention that
Kllokoqi’s credibility was damaged by his use of allegedly
fraudulent documents. First, the conclusion that Kllokoqi’s
warrant and subpoena were altered is flawed. Epstein
acknowledged that he could not conclude that these docu-
ments were not in their original state. For example, he
10 No. 03-3508
stated that the toner might not have been removed deceit-
fully, but, rather, rubbed off through folding and unfolding.
Second, even if the documents were altered by some-
one other than the issuing authorities, the IJ made no
finding that Kllokoqi altered the documents or knew or
suspected that they were altered. If he did not know, then
the alleged alterations cannot be used as evidence against
the credibility of his testimony that they are genuine. See
Kourski v. Ashcroft, 355 F.3d 1038, 1039 (7th Cir. 2004)
(reversing an adverse credibility finding where the IJ did
not find that the petitioner knew or suspected that his birth
certificate was a forgery). Kllokoqi testified that
after leaving Croatia, his family sent him the warrant and
the subpoena in Italy. Kllokoqi denied knowledge of any
alterations. Because there is no evidence or finding that
he knew or suspected the subpoena and warrant were
altered, the documents should not have been used to
impugn his credibility.
Third, the IJ ignored the identification card as posi-
tive credibility evidence. Kllokoqi’s possession of an au-
thentic Yugoslav identification card helps his credibility,
and the government does not contest the card’s authentic-
ity. The IJ, however, never mentions the card anywhere
in his reasoning for making an adverse credibility find-
ing and focuses instead on evidence that the warrant
and subpoena were altered. The IJ should have given the
identification card’s authenticity proper weight.
The final basis for the IJ’s adverse credibility finding
is his determination that Kllokoqi did not provide corrobo-
rating evidence to support his testimony. We disagree not
only with the IJ’s improper and erroneous insistence
that Kllokoqi must present corroborating evidence, but also
with the suggestion that he did not provide any.
This court has “repeatedly emphasized that corroborative
evidence is not necessary when the applicant’s testimony is
No. 03-3508 11
otherwise credible.” Lin, 385 F.3d at 756; see 8 C.F.R.
§ 208.13(a) (“The testimony of the applicant, if credible, may
be sufficient to sustain the burden of proof without corrobo-
ration.”). Viewing the record as a whole, we think that
Kllokoqi’s testimony was consistent and that the IJ’s
determination that Kllokoqi’s testimony was vague and
incredible is not supported by the record. Kllokoqi’s testi-
mony was not internally inconsistent, and he had reason-
able explanations for any potential discrepancies. As such,
there is no corroboration requirement.2
Although Kllokoqi’s claim did not require corroboration,
he presented evidence which the IJ appeared to ignore. As
we mentioned above, Kllokoqi’s identification card corrobo-
rates his claim that he is from Kosovo. What is most
disturbing to this court, however, is the IJ’s failure to
properly consider Dr. Goldberg’s testimony. In his report,
Dr. Goldberg concluded that Kllokoqi’s injuries, including
those to his scrotum and shins, were consistent with severe
beatings. If the IJ needed corroborating evidence, Dr.
Goldberg’s testimony was sufficient.
Instead, the IJ inexplicably replaced the testimony of both
Kllokoqi and Dr. Goldberg with his own suggestion that
Kllokoqi injured his testicle while riding a bicycle. It is
error to base an adverse credibility decision on speculation
and conjecture. Korniejew, 371 F.3d at 383 (citation omit-
ted). During the hearing, the IJ posited his bicycle theory no
fewer than four times. The IJ did not, however, solicit any
2
That is not to say that corroboration is never necessary in
immigration proceedings. Indeed, corroborating evidence is
necessary to buttress an unconvincing case. Uwase v. Ashcroft,
349 F.3d 1039, 1041 (7th Cir. 2003); see, e.g., Ahmad, 163 F.3d
at 461-63 (affirming asylum denial where applicant’s testi-
mony conflicted with his application and the applicant failed
to submit additional corroborative evidence).
12 No. 03-3508
evidence that Kllokoqi rode a bicycle, that people in Kosovo
commonly ride bicycles, or that Kllokoqi’s severe injuries
could have been caused by bicycle riding. At one point, the
IJ interrupted closing argument to note that “even here in
this country cyclists . . . injure themselves as well. And I
note that bicycling is one of the means of transportation in
Europe and Kosovo as well. How do I know this was not a
bicycle accident?” The IJ gave Kllokoqi and his attorney no
chance to answer that question. In fact, the IJ refused
Kllokoqi’s attorney’s request to recall Dr. Goldberg so the
doctor could give his medical opinion on this bicycle-riding
theory. The IJ’s continued speculative insistence that
Kllokoqi’s testicle was injured from bicycle riding was
highly inappropriate. There is no reason to believe that
Kllokoqi and his doctor were not telling the truth, and the
IJ’s conclusion that Kllokoqi lacked credibility is unsup-
ported by the record.
C. Well-Founded Fear of Future Persecution
Aside from the improper adverse credibility finding, we
remand Kllokoqi’s claim because the IJ failed to fully
consider all of Kllokoqi’s arguments. We are therefore left
unclear as to whether the government has rebutted
Kllokoqi’s presumption of future persecution. The Immi-
gration and Nationality Act (INA) provides that the Attor-
ney General may grant asylum to any alien who qualifies as
a refugee, 8 U.S.C. § 1158(b)(1)(A), defined as a person
outside his or her home country “who is unable or unwilling
to return . . . because of persecution or a well-founded fear
of persecution on account of . . . political opinion,” 8 U.S.C.
§ 1101(a) (42) (A). Once past persecution is established, it
gives rise to a rebuttable presumption that the refugee will
face future persecution. 8 C.F.R. § 208.13(b)(1); see, e.g.,
Oforji v. Ashcroft, 354 F.3d 609, 613 (7th Cir. 2003). The
government can overcome that presumption if it estab-
No. 03-3508 13
lishes, by a preponderance of the evidence, that conditions
in the applicant’s home country have changed such that he
no longer has a “well-founded fear of persecution.” 8 C.F.R.
§ 208.13(b)(1)(A); see, e.g., Begzatowski v. INS, 278 F.3d
665, 671 (7th Cir. 2002).
An applicant may also affirmatively demonstrate a well-
founded fear of future persecution. To do so, he must show a
reasonable possibility of future persecution, not necessarily
a clear probability of future persecution. INS v.
Cardoza-Fonseca, 480 U.S. 421, 440 (1987); INS v. Stevic,
467 U.S. 407, 424-25 (1984). The applicant may establish a
reasonable possibility of future persecution by showing that
there is even a 10 percent chance that he will be shot,
tortured, or otherwise persecuted. Cardoza-Fonseca, 480
U.S. at 440. The case-specific establishment of a
well-founded fear of future persecution encompasses
objective and subjective elements. Useinovic v. INS, 313
F.3d 1025, 1030 (7th Cir. 2002). To satisfy the subjective
component, an individual must show that he has a genuine
fear of returning to his home country. Asani v. INS, 154
F.3d 719, 725 (7th Cir. 1998). To satisfy the objective
component, the applicant must demonstrate that a reason-
able person in his circumstances would fear persecution if
forced to return to his native country. Id.
The government can only rebut the presumption of future
persecution by showing by a preponderance of the evidence
that the conditions in Kosovo have changed enough to
overcome the applicant’s fear of future persecution. See 8
C.F.R. § 1208.13(b)(1)(i)(A); Brucaj v. Ashcroft, 381 F.3d
602, 606-07 (7th Cir. 2004). At this time, it is unclear
whether the government can meet that burden. In his
opinion, the IJ wrote, “Even assuming that [Kllokoqi] had
established past persecution, he does not have a
well founded fear of future persecution because there has
been a fundamental change of circumstances in Kosovo.”
However, Kllokoqi argued in his brief and at oral argument
14 No. 03-3508
that there is still ethnic violence in Kosovo and that the
country continues to lack an independent judiciary. The IJ
failed to address these concerns which directly address the
issue of whether Kllokoqi has a well founded fear of future
persecution. Until the IJ addresses all of Kllokoqi’s argu-
ments, we cannot determine whether the government has
rebutted Kllokoqi’s presumption of future persecution. If
Kllokoqi can demonstrate a fear of future persecution in
Kosovo, he is entitled to asylum.
D. Humanitarian Relief
Even if the government rebuts a presumption of
Kllokoqi’s future persecution or if Kllokoqi fails to affirma-
tively show a well-founded fear of future persecution, the
Attorney General can still grant Kllokoqi asylum “as a
matter of discretion for humanitarian reasons if the alien
has suffered . . . ‘atrocious forms of persecution.’ ” Asani,
154 F.3d at 722 (quoting Matter of Chen, 20 I. & N. Dec. 16,
19 (BIA 1989)). As the BIA acknowledged in Chen, “there
may be cases where the favorable exercise of discretion is
warranted . . . even if there is little likelihood of future
persecution.” Chen, 20 I. & N. Dec. at 19; see also Brucaj v.
Ashcroft, 381 F.3d 602, 608 (7th Cir. 2004). The applicant
has the burden to “demonstrate[ ] compelling reasons for
being unwilling or unable to return . . . arising out of the
severity of past persecution.” 8 C.F.R. § 1208.13(b)(1)(iii)(A).
Kllokoqi carries a heavier burden in attempting to
establish persecution under this method than he would if he
could establish a well-founded fear of persecution. See
Bereza, 115 F.3d 468, 476 (7th Cir. 1997). To qualify for
a humanitarian grant of asylum, Kllokoqi must show
such severe past persecution that “repatriation would
be inhumane.” Id. at 724. This is a difficult burden in-
deed, but the IJ should consider this form of relief in light
of Kllokoqi’s claims of extreme violence while in Kosovo.
No. 03-3508 15
III. CONCLUSION
For the foregoing reasons, we VACATE the BIA’s removal
order and REMAND for further proceedings consistent
with this opinion.
While the final choice of a presiding judge remains always
with the BIA, we strongly encourage the BIA to assign
Kllokoqi’s case to a different judge on remand in order to
avoid any perception of lingering bias. See Georgis v.
Ashcroft, 328 F.3d 962, 970 (7th Cir. 2003) (citing Circuit
Rule 36 of the United States Court of Appeals for the
Seventh Circuit, which establishes the same default rule for
cases remanded to federal district courts).
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-12-05