Korniejew, Walentyna v. Ashcroft, John ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1491
WALENTYNA KORNIEJEW,
Petitioner,
v.
JOHN D. ASHCROFT,
Respondent.
____________
Petition for Review of an Order of
the Board of Immigration Appeals.
No. A76-456-673
____________
ARGUED DECEMBER 2, 2003—DECIDED JUNE 14, 2004
____________
Before RIPPLE, MANION and DIANE P. WOOD, Circuit
Judges.
RIPPLE, Circuit Judge. Petitioner Walentyna Korniejew
seeks review of an adverse decision of the Board of
Immigration Appeals (the “BIA” or “Board”) that denied
her request for asylum. For the reasons set forth in the fol-
lowing opinion, we deny the petition and affirm the deci-
sion of the BIA.
2 No. 03-1491
I
BACKGROUND
A. Facts
Ms. Korniejew was born in the village of Dawidowicze,
Poland, on January 14, 1961. Ms. Korniejew’s mother was
Jewish, and her family practiced its Jewish faith in secret.
Ms. Korniejew’s parents kept their daughter’s faith hidden
so that Ms. Korniejew could attend school and college
without encountering the same hostility as other Jewish
students.
At the time Ms. Korniejew graduated from college, about
1
1980, the Polish government began renovating some of the
synagogues that had been destroyed in World War II or that
otherwise had fallen into disrepair. Ms. Korniejew and a
number of the Jewish residents of her village decided to
visit the synagogue at Tykocin and to try to hold services
there. When they arrived, however, they found the syna-
gogue closed. Authorities ordered Ms. Korniejew’s group to
report to the local police precinct; there they were told that
the synagogue was only a museum, not a place of worship.
They also were warned, on pain of imprisonment, not to
attempt to hold services there in the future. The group then
was fingerprinted and released.
On the road home from Tykocin, a small group of people
on the side of the road signaled for the bus to stop. Two
individuals boarded the bus; one of them pulled a gun, and
the other drove the bus to a neighboring village. The
1
Ms. Korniejew’s affidavit attached to her asylum application
states that she graduated from college. However, in her testi-
mony, she maintains that she was expelled from college when the
dean discovered she was Jewish. Compare A.R. 268 (affidavit) with
A.R. 177-78 (testimony).
No. 03-1491 3
hijackers drove the bus to a large barn where another man,
wearing black and bearing a swastika on his arm, boarded
the vehicle. The man threatened the group and told them
that they should not attempt to visit the synagogue again.
The hijackers then took the bus back to the main road.
Later, in 1986, another group attempted a similar trip to
the Nozyk Synagogue in Warsaw to celebrate Rosh
Hashanah. The group did not experience any problems until
the return trip. In her asylum affidavit, Ms. Korniejew
recounted that the following events occurred on their return
trip from Warsaw:
After about 10 km from the city limits our bus was
stopped by the police car. The policeman checked the ID
of our driver and asked him to give a lift to two people.
. . . After just a few minutes those two people stood up
and pointed guns at the driver and at us. The driver was
ordered to sit in the front row and one of the attackers
took the driver’s seat . . . .
. . . The attackers asked who was the leader of our
group. None of us answered. Then they pointed to-
wards two of our older people Lesczynski and
Kozlowski and ordered them to leave the bus. After
they refused to leave it they shot Kozlowski, Lesczynski
2
went towards the door and left the bus.[ ] In about 30
minutes he returned brutally beaten.
After that the attackers ordered me and Natalie
Siemieniuk to leave the bus. We stepped out of the bus
and they took us to the neighboring house. The group of
people waiting for us in the house was in black uni-
forms with swastikas on their arms . . . . Two of them
2
In her hearing testimony, Ms. Korniejew stated: “I think
Kozlowski was shot. I don’t remember for sure. But the other one
they pushed out.” A.R. 185.
4 No. 03-1491
grabbed me and pushed into the room, where he fol-
lowed me. There he brutally raped me. In the other
room the same thing happened to Natalie. After they
finished torturing us they returned us back to the bus.
A.R. 270-71. Ms. Korniejew suffered a great deal from her
ordeal and could not go back to work until September 1987.
The local Jewish community attempted no future trips; the
Jewish families continued to gather in homes or at a local
Jewish cemetery.
In the middle of 1988, the construction firm for which Ms.
Korniejew worked was hired to build a development of
homes on part of the Jewish cemetery where Ms. Korniejew
and others worshiped. The group of worshipers was
advised by local authorities that, if they wished to stop the
project, they must file a written protest. They did so in
January 1989.
In February 1989, individuals who signed the protest
received threatening notes vowing revenge if the complaint
were not withdrawn. The company for which Ms. Korniejew
worked discovered that she had participated in the protest
and terminated her employment. Ms. Korniejew then
complained twice to the Attorney General of Poland
regarding the development; in her last complaint, she
included a statement regarding “the ignorance of local and
State authorities.” A.R. 272.
In March 1989, Ms. Korniejew was kidnapped by “skin-
heads” who threatened to kill her if the complaints to the
Attorney General were not withdrawn. She agreed to accede
to their demands. They kept her overnight and threatened
3
to kill her family if she “cheat[ed] them.” Id.
3
In her testimony before the Immigration Judge, Ms. Korniejew
failed to mention this event. She stated that she “[m]aybe . . .
(continued...)
No. 03-1491 5
Ms. Korniejew stated that, after this last event, she and her
husband were very scared and moved to her grandparents’
house. They stayed with her grandparents until Ms.
4
Korniejew left for the United States in April 1989. Accord-
ing to Ms. Korniejew, her parents would visit her former
apartment and “for more than half a year were taking
threats from our mailbox.” A.R. 272. After another six
months, Ms. Korniejew’s husband moved back to the
apartment; however, he left their daughter in the care of Ms.
Korniejew’s grandparents.
Between 1992 and 1995, several members of the group
who had protested the cemetery development mysteriously
disappeared. Then, in January 1997, Ms. Korniejew’s hus-
5
band unexpectedly disappeared. See id. at 273. His body
never was found, and, as of the time of Ms. Korniejew’s
removal hearing, the case of his disappearance remained
open.
3
(...continued)
forgot to mention it. Because it was a lot of years ago.” A.R. 210.
When counsel for the Government pointed out that this was the
most recent event, she stated that “[w]ell, I mean they kept me
overnight but they didn’t do all that much to me. I mean they,
they beat me up a little.” Id. Finally, she stated that “my attorney
didn’t ask me about it.” Id.
4
Ms. Korniejew was admitted as a visitor for a period of no
more than six months.
5
Ms. Korniejew testified that her husband disappeared on
December 30 or 31, 1996. The “death certificate” presented at Ms.
Korniejew’s hearing stated that he disappeared on December 30,
1996.
6 No. 03-1491
B. Administrative Proceedings
As noted above, Ms. Korniejew entered the United States
with a visitor’s visa on April 30, 1989. She filed an applica-
tion for asylum on October 22, 1997. Shortly thereafter, on
January 12, 1998, the Immigration and Naturalization
6
Service issued a Notice to Appear, and a removal hearing
was held on November 19, 1998.
At her hearing, Ms. Korniejew admitted that she was
removable, but sought asylum and withholding of removal.
The Immigration Judge (“IJ”) denied the requested relief,
but granted her voluntary departure. Specifically, the IJ
found that her testimony lacked credibility based upon
several discrepancies between her affidavit and her tes-
timony. First, the IJ noted that Ms. Korniejew had testified
that she was expelled from college; however, she had stated
in her affidavit that she graduated from college. The IJ also
found a discrepancy regarding the events of October 1986;
the IJ noted that Ms. Korniejew had testified that “two
members of her party were taken off the bus by skinheads
and shot. Her affidavit indicates, however, that one of them
(Kozlowski) was shot after he refused to get off the bus.”
A.R. 152.
The IJ also was influenced by other shortcomings in Ms.
Korniejew’s presentation of her case: (1) Ms. Korniejew’s
affidavit indicated that she protested the construction
in January 1989 and “began receiving threats in February,
whereas she testified that she received threats for six
6
Recently, the Immigration and Naturalization Service was
abolished, and its immigration enforcement function was trans-
ferred to the Bureau of Immigration and Customs Enforcement
in the newly created Department of Homeland Security. See
Gonzalez v. O’Connell, 355 F.3d 1010, 1011 n.1 (7th Cir. 2004).
No. 03-1491 7
months after filing the protest (which would not have been
possible given that she came to the U.S. in April 1989),” A.R.
152; (2) Ms. Korniejew failed to testify to a 1989 kidnapping
that she had mentioned in her asylum application; (3) Ms.
Korniejew did not provide a satisfactory explanation for
why she waited eight years to file an asylum application;
and (4) not one of the incidents recounted by Ms. Korniejew
was supported by documentation. The only exception to
this lack of corroboration was the letter from the police
regarding her husband’s “death” which the court found to
be of little probative value
because it is not an official record and does not indicate
any circumstances behind his alleged disappearance or
the cause of death. Moreover, according to its contents
the death was reported on December 30, 1986, which is
a day before, according to the respondent’s testimony,
he allegedly disappeared.
A.R. 154.
The BIA affirmed the judgment of the IJ. It stated first that
it
will generally defer to an Immigration Judge’s adverse
credibility findings that are based on inconsistencies
and omissions that are central to the claim where (1) the
discrepancies and omissions are actually present in the
record; (2) the discrepancies and omissions provide
specific and cogent reasons for the adverse credibility
finding; and (3) the alien has not provided a convincing
explanation for the discrepancies and omissions.
A.R. 4. The BIA then determined that, based on its own
review of the record, there were “material inconsistencies
between her asylum application and testimony.” Id. Spe-
cifically, the BIA pointed to the fact that Ms. Korniejew
testified that she was forced to leave the university because
8 No. 03-1491
she was Jewish; in her asylum application, however, Ms.
Korniejew stated that she graduated from the university.
The BIA also mentioned the fact that Ms. Korniejew failed
to testify during her hearing that she was kidnapped in
March 1989. Finally, the BIA noted that Ms. Korniejew
testified that
she began receiving threats 6 months after she filed a
protest against the construction of homes on a Jewish
cemetery. According to her application, her protest was
filed in January 1989. Inasmuch as she entered the
United States in April 1989, we agree with the
Immigration Judge that these two statements are ir-
reconcilable.
Id. at 5 (citation omitted). Based on these examples, and the
others set forth in the IJ’s opinion, the BIA was “unable to
find that the Immigration Judge incorrectly decided the
issues at the hearing,” id., and therefore affirmed the IJ’s
decision.
II
ANALYSIS
A. Standard of Review
7
This court’s review of a BIA decision is limited. This
court must uphold the BIA’s determination if it is supported
by “reasonable, substantial, and probative evidence on the
record considered as a whole.” Toptchev v. INS, 295 F.3d 714,
720 (7th Cir. 2002) (internal quotation marks and citations
7
Because the BIA conducted an independent review of the
record and did not rely exclusively on the IJ’s findings, we review
the BIA’s decision and not that of the IJ. See Vongsakdy v. INS, 171
F.3d 1203, 1206 (9th Cir. 1999).
No. 03-1491 9
omitted). Stated slightly differently, this court must affirm
unless the evidence compels a different result. See Ciorba v.
Ashcroft, 323 F.3d 539, 544 (7th Cir. 2003).
Furthermore, this court has recognized that “[c]redibility
determinations are accorded substantial deference” and
“should only be overturned under extraordinary circum-
stances.” Ahmad v. INS, 163 F.3d 457, 461 (7th Cir. 1999) (in-
ternal quotation marks and citations omitted). However,
“they must be supported by specific, cogent reasons.” Id. “In
addition, these reasons must bear a legitimate nexus to the
finding.” Id. (internal quotation marks and citations omit-
ted).
B. Asylum
Ms. Korniejew maintains that her testimony before the IJ
established that she had suffered past persecution in
Poland. This testimony, she continues, was credible. She ar-
gues that the inconsistencies cited by the IJ and the BIA are
either illusory or negligible, and, therefore, they cannot form
the basis of an adverse credibility determination.
It is well-established that the credible testimony of an
alien, without more, may be sufficient to sustain an asylum
claim. See Capric v. Ashcroft, 355 F.3d 1075, 1085 (7th Cir.
2004); see also 8 C.F.R. § 208.13(a) (“The testimony of the ap-
plicant, if credible, may be sufficient to sustain the burden
of proof without corroboration.”). “However, if the IJ finds
the testimony to be incredible, then a convincing explana-
tion of the discrepancies or extrinsic—and credible—cor-
roborating evidence is required.” Capric, 355 F.3d at 1086.
On review, it is not the province of this court to “ ‘second
guess th[e] . . . factual findings and credibility determina-
tions’ ” made by the IJ or the BIA. See Mansour v. INS, 230
10 No. 03-1491
F.3d 902, 906 (7th Cir. 2000) (quoting Karpetian v. INS, 162
F.3d 933, 936 (7th Cir. 1998)). However, we shall not “auto-
matically yield” to the agency’s conclusions. Georgis v.
Ashcroft, 328 F.3d 962, 968 (7th Cir. 2003). “[C]redibility
determinations . . . must be supported by ‘specific, cogent
reasons.’ In addition, these reasons must ‘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 shall not defer to credibility deter-
minations “drawn from insufficient or incomplete evi-
dence,” Georgis, 328 F.3d at 969, nor shall we uphold “[a]d-
verse credibility determinations based on speculation or
conjecture, rather than on evidence in the record,” Gao v.
Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002).
1. Discrepancies in the Evidence
In the present case, the IJ relied on several discrepancies,
as well as other shortcomings, in the evidence to deny Ms.
Korniejew relief. In its affirmance, the BIA relied specifically
on three of the inconsistencies and referenced other aspects
of the IJ’s decision. Because the BIA conducted its own
review of the record, we look to the contradictions
and shortcomings on which the BIA relied to determine
whether these are sufficient to support the BIA’s determina-
tion that Ms. Korniejew did not present a credible case for
asylum. See supra note 7.
a.
The BIA refers specifically to three discrepancies in Ms.
Korniejew’s testimony. First, it cites the fact that Ms.
Korniejew testified during her hearing that she was expelled
No. 03-1491 11
from college; however, she had stated in her affidavit that
she graduated. There is no question that the difference in
Ms. Korniejew’s affidavit and testimony constitutes a
discrepancy. Ms. Korniejew acknowledges this shortcoming
in the evidence and simply urges this court to disregard all
of the evidence concerning her college education. According
to Ms. Korniejew, this is a minor inconsistency, and, even
without this testimony, she has established past persecution.
We cannot dismiss as inconsequential evidence regarding
discrimination in education. Although we have not held
explicitly that the denial of a higher education in all situa-
tions constitutes persecution, we have suggested that an
official policy denying an ethnic or religious minority the
right to a higher education could be a form of persecution.
See Bucur v. INS, 109 F.3d 399, 403 (7th Cir. 1997) (“If
Romania denied its Ukrainian citizens the right to higher
education enjoyed by ethnic Romanians, this would be, we
imagine, a form of persecution.”); id. at 405 (“If a govern-
ment as part of an official campaign against some religious
sect closed all the sect’s schools (but no other private
schools) and forced their pupils to attend public school, this
would be, we should think, although we need not decide, a
form of religious persecution.”). Nevertheless, we agree
with Ms. Korniejew that her allegation that she was expelled
from college based on her Jewish faith is not the linchpin of
her asylum claim. Consequently, if the BIA’s other grounds
for upholding the IJ’s credibility determination do not
survive review, we cannot say that this item, standing alone,
can form the basis for an adverse credibility finding.
b.
In its decision, the BIA also relied upon Ms. Korniejew’s
failure to testify to the March 1989 kidnapping incident. In
12 No. 03-1491
her affidavit, Ms. Korniejew detailed the events leading to
her decision to leave for the United States in April 1989. She
recounted the threats that she received in February and
March 1989, as well as the termination of her employment
at the same time. Additionally she stated:
On March 28, I was kidnapped on my way from the
bakery. Skinheads who kidnapped me promised to kill
me if our complaints to [the] Attorney General would
not be withdrawn. I was scared and promised to do
whatever they demanded. They promised to kill my
family if I were to cheat them. They kept me overnight
and took me back to where they kidnapped me.
A.R. 272. Ms. Korniejew also related that, following this
event, “[m]y husband was scared to death and we decided
not to risk our lives. We moved to my grandparents’ house
in Dawidowicze and stayed there till I left for the US at the
end of April.” Id.
Based on Ms. Korniejew’s affidavit, the kidnapping event
was an important factor in the decision to uproot her family
and to leave for the United States. However, during her
asylum hearing, Ms. Korniejew failed to mention this oc-
currence during her direct examination, despite the fact that
8
she was given opportunities to do so. When counsel for the
Government confronted Ms. Korniejew with her failure to
mention this event, the following colloquy took place:
8
After describing to the IJ the threats that she had received
in February and March 1989, her counsel inquired: “Did anything
else happen to you at this time, ma’am?” A.R. 194. Ms. Korniejew
replied: “Well after all of this I had come to the United States.
This is the end of April in ‘89.” Id. Later in the hearing, Ms.
Korniejew’s counsel invited her to make any additional state-
ments: “Do you have anything else that you’d like to say person-
ally to the Court, ma’am?” Id. at 204. Again, Ms. Korniejew made
no mention of the 1989 kidnapping.
No. 03-1491 13
Q. Why didn’t you mention that [the 1989 kidnapping]
here today?
A. Maybe I forgot to mention it. Because it was a lot of
years ago.
Q. Well 1989 would have been the most recent of
something occurring to you there. And your state-
ment says, your statement says that you were kept
overnight by skinheads.
A. Well, I mean they kept me overnight but they didn’t
do all that much to me. I mean they, they beat me
up a little. But I very strongly remember that return
from Warsaw to Bialystok that incident.
Q. Why wouldn’t you tell the Judge today about the
most recent incident that occurred to you before
you left Poland?
A. Well, my attorney didn’t ask me about it.
A.R. 210.
Under these circumstances, we must conclude that Ms.
Korniejew’s failure to testify to the 1989 kidnapping is sig-
nificant. This incident represents Ms. Korniejew’s most
recent personal encounter with those threatening her. It also
is the only time that she ever was held overnight. Further-
more, this incident involved physical injury to
Ms. Korniejew; she testified during the hearing that she was
“beaten up a little” by her abductors. Finally, at least
according to Ms. Korniejew’s affidavit, the incident contrib-
uted to her decision to remove her family from their village
and to leave for the United States. We, therefore, cannot
fault the BIA for basing its credibility determination in part
on Ms. Korniejew’s failure to testify to this event.
14 No. 03-1491
c.
The BIA also cited Ms. Korniejew’s testimony regarding
the timing of threats she received as a basis for upholding
the IJ’s credibility finding. We believe this discrepancy is
illusory. Ms. Korniejew did not testify that she began re-
ceiving threats six months after she filed the protest, i.e., in
July 1989; she stated that “for about six months after filing
those papers we were receiving threatening letters.” A.R.
193. Thus, her testimony was consistent with her representa-
tions in her affidavit that she began receiving threats in
February 1989 and those threats continued to be sent to her
address after her departure for the United States in April
1989.
2. Credibility Determination
The question then becomes whether these two shortcom-
ings in Ms. Korniejew’s testimony are sufficient to sustain
the adverse credibility finding of the BIA. We faced a
similar question in Georgis v. Ashcroft, 328 F.3d 962 (7th Cir.
2003). In Georgis, the IJ had denied an asylum application on
the ground that he did not believe that the testimony of the
applicant was credible. In his decision, the IJ listed six
instances of inconsistencies or other shortcomings in the
applicant’s testimony which, in the IJ’s opinion, under-
mined her credibility. Several of these discrepancies in-
volved differences in dates that were attributable to the
differences in the Gregorian and Julian calendars, and the
9
Government conceded that these were minor. Conse-
quently, we were left with only two problems cited by the
IJ concerning the applicant’s testimony: the lack of corrobo-
9
The applicant was from a country that followed the Julian
calendar.
No. 03-1491 15
ration and the applicant’s failure to mention in her asylum
application an arrest and beating incurred as a result of
participating in a demonstration in 1993.
In Georgis, turning to the last two issues, we held that “it
was error to exclude documents verifying the petitioner’s
testimony that [s]he had been arrested and detained for lack
of certification when the denial of asylum was based in part
on the lack of corroborating evidence.” Id. at 969 (citing
Khan v. INS, 237 F.3d 1143, 1144 (9th Cir. 2001)). With
respect to the applicant’s failure to mention the one incident
in her asylum application, we stated:
The remaining reason why the IJ discredited Georgis’s
claims was that her asylum application did not mention
that she had been arrested and beaten in September
1993 for demonstrating in support of Professor
Woldeyes, nor did it mention that her uncle had been
killed due to those demonstrations. Specifically, Item 4
of the application asked whether Georgis “or any
member of [her] family [had] ever been mis-
treated/threatened by the authorities.” Item 5 then
asked if Georgis “or any member of [her] family [had]
ever been arrested, detained, interrogated, convicted
and sentenced, or imprisoned.” While citing other, more
recent examples of the persecution of her family mem-
bers by the Ethiopian government, Georgis did not
mention the September 1993 events in response to either
of these questions. At her hearing Georgis explained
that the reason she did not mention the 1993 arrest in
response to Item No. 5 was because she did not believe
that “the incident would count as imprisonment. In my
mind what imprisonment I thought that it’s in the
central prison for longer terms and all that. That’s why
I didn’t really mention it.” She further explained that
she did not bring up the incident in response to Item
16 No. 03-1491
No. 4 because “it is a short term and short time, I
thought it was not much relevance for the case . . . . I
didn’t mention it is because it’s a past case. I didn’t
thought that it’s going to help my case. I thought that
the current situation that I have, my children’s and my
husband problem, that’s what I emphasized it more
than what happened to me.”
Id. at 969-70. We considered the applicant’s explanations
“plausible”; however, we recognized “that it is the role
of the IJ and not this reviewing court to decide whether
her explanation justified her omitting the incident from
her asylum application.” Id. at 970. Nevertheless, “having
found that the other five reasons given by the IJ for discred-
iting Georgis are either unsupported by the evidence in the
record or based on incomplete or improperly excluded
evidence, we [we]re not inclined to defer to his credibility
determination on this remaining sixth ground alone.” Id.
Although we are concerned by the lack of attention to the
record that the BIA exhibited when it relied upon the timing
of the threats as a reason to uphold the IJ’s credibility
determination, we do not regard the BIA’s decision as
equivalent to that of the IJ in Georgis. In Georgis, we discred-
ited five of the six reasons cited by the IJ in support of his
credibility determination; in this case, we have discredited
only one of three. Additionally, in Georgis, the one discrep-
ancy remaining after our review was not an event that
immediately had preceded the applicant’s decision to come
to the United States or to seek asylum, and other “more
recent examples of the persecution of her family members
by the Ethiopian government” had been cited in the asylum
application. Id. at 969. By contrast, in the present case, the
1989 kidnapping was the most recent example of harass-
ment. It was the only incident that involved Ms. Korniejew
being kept overnight, and it immediately preceded her
No. 03-1491 17
departure for the United States. Furthermore, unlike the
applicant in Georgis, Ms. Korniejew does not offer the same
level of explanation as to why she forgot to testify to the
1989 kidnapping, nor does she offer an explanation for the
discrepancy in her testimony and application concerning
her education. Consequently, we believe that Ms.
Korniejew’s situation is not analogous to that of the appli-
cant in Georgis and that there is sufficient evidence, although
certainly not overwhelming, to support the BIA’s conclusion
that Ms. Korniejew was not credible.
Although we uphold the decision of the BIA in this
case, we note the increasing reliance by the BIA and IJs up-
on perceived inconsistencies in testimony and upon lack
of corroboration as the basis for adverse credibility de-
terminations. See Ememe v. Ashcroft, 2004 WL 253552 (7th
Cir. Feb. 12, 2004) (reversing decision of BIA based upon
adverse credibility finding when inconsistencies may have
been due to limited language skills and no inquiry into
proficiency was made); Uwase v. INS, 349 F.3d 1039, 1044
(7th Cir. 1992) (granting petition for review when the IJ
relied on minor inconsistencies and an unfounded lack of
corroboration to deny asylum request); Georgis, 328 F.3d at
970 (vacating removal order and remanding for further
proceedings where the bases for the IJ’s adverse credibility
determination were, in large part, undermined). Although
it remains the province of the agency to evaluate the credi-
bility of an applicant’s evidence, the reason for this defer-
ence is that “direct authentication or verification of an
alien’s testimony and/or evidence is typically very difficult
and often impossible.” Capric v. Ashcroft, 355 F.3d 1075, 1085
(7th Cir. 2004). Indeed, we frequently have acknowledged
that it is unreasonable to expect asylum applicants to
procure corroborating documents when official records are
“in disarray,” either because of war, revolution or simply
lack of institutional regularity. Kourski v. Ashcroft, 355 F.3d
18 No. 03-1491
1038, 1039 (7th Cir. 2004). We trust that IJs will not continue
to insist on corroborating evidence when common sense and
institutional experience suggest that there is none to be had.
Additionally, we remind those evaluating administrative
records that adverse credibility determinations should not
be grounded in trivial details or easily explained discrepan-
cies; as recounted above, an adverse credibility determina-
tion must be supported by “specific, cogent reasons” that
“bear a legitimate nexus to the finding.” Ahmad, 163 F.3d at
10
461.
10
We note that, even if we had disagreed with the BIA’s cre-
dibility determination, we would be hesitant to remand this case
to the BIA. It is clear from the administrative record that, at the
time of Ms. Korniejew’s asylum hearing, the government of
Poland did not condone religious discrimination and, indeed,
that “[c]urrent law place[d] Protestant, Catholic, Orthodox, and
Jewish communities on the same legal footing.” A.R. 86. The 1997
Country Report also noted that although “[a]nti-Semitic feelings
persist among certain sectors of the population, occasionally
manifesting themselves in acts of vandalism and physical or
verbal abuse,” “surveys in recent years show a continuing decline
in anti-Semitic sentiment, and avowedly anti-Semitic candidates
fare very poorly in elections.” Id. In short, between the time that
Ms. Korniejew left Poland in 1989 and the time of her hearing in
1998, the circumstances for Jews in Poland had improved
markedly. Furthermore, the most recent International Religious
Freedom Report establishes that circumstances continue to
improve; it notes that “[t]he Constitution provides for freedom of
religion, and the Government generally respects this right in
practice.” See U.S.D.O.S. International Religious Freedom Report
(Poland) at 1. When State Department documents establish
changed country conditions, we have stated that a remand is not
required. See Dobrota v. INS, 195 F.3d 970, 974 (7th Cir. 2000)
(stating that “remand would be futile in light of most current
(continued...)
No. 03-1491 19
Conclusion
For the foregoing reasons, the petition for review is
denied, and the judgment of the BIA is affirmed.
PETITION FOR REVIEW DENIED; AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
10
(...continued)
conditions in Romania as reflected in the most recent State
Department report”).
USCA-02-C-0072—6-14-04