Tabaku, Martin v. Gonzales, Alberto R. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1689
MARTIN TABAKU and ENTELA BINO,
Petitioners,
v.
ALBERTO GONZALES, Attorney General
of the United States,
Respondent.
____________
Petition for Review of an Order of
the Board of Immigration Appeals.
Nos. A79-290-895, A79-290-896
____________
ARGUED JANUARY 21, 2005—DECIDED SEPTEMBER 29, 2005
____________
Before RIPPLE, WOOD, and SYKES, Circuit Judges.
WOOD, Circuit Judge. Martin Tabaku and Entela Bino,
a married couple from Albania, claim that organized
crime factions threatened both of their lives because of their
efforts to free women from Albania’s sex-slave trade. The
couple contend that their lives will be at risk if they are
forced to return to Albania. They filed for asylum, withhold-
ing of removal, and protection under the United Nations
Convention Against Torture. The Immigration Judge (IJ)
denied all relief because he concluded that the couple’s
story was not credible, a ruling the Board of Immigration
Appeals (BIA) summarily affirmed. We grant the petition
2 No. 04-1689
for review and remand the couple’s case to the agency,
because there was insufficient evidence to support the IJ’s
adverse credibility determination.
I
Through an interpreter, Martin Tabaku presented the
following account to the IJ during the hearing held on
October 1, 2002. Entela Bino, his wife, did not testify;
instead, she stayed right outside the courtroom with the
couple’s one-month-old son.
Tabaku testified that before leaving Albania in 2000, he
and his wife lived in Korçë, a small city near the Greek
border. Active in the local Eastern Orthodox church, the
couple began to help women caught in Europe’s sex-slave
trade. When these women were able to escape their captors,
the couple’s church would help them travel to their home
countries’ embassies in either Tirana, the capital of Alba-
nia, or in Greece. Tabaku corroborated this account by
submitting a number of documents discussing the sex-slave
trade in the Balkans and by providing a somewhat vague
letter from the church which stated that Tabaku and Bino
assisted “the poor and other people in need of help as
missionaries of our church.”
This work continued in secret and without incident un-
til June 5, 1999. On that day, after bringing a young girl to
the Romanian embassy in Tirana, a member of the couple’s
church group was captured on her way back to Korçë.
Tabaku testified that the driver of the car told him that he
had seen the woman raped and killed. The driver was
allowed to leave, but he was too afraid to report the crime.
Tabaku, over the driver’s protests, reported the driver’s
story to the local police. After briefly speaking with some of
the officers, Tabaku returned to the woman’s home. A few
hours later, five police officers and someone Tabaku
believed was a member of the Albanian mafia arrived at the
No. 04-1689 3
home of the woman who had been killed. The unidentified
man approached Tabaku and told him that the woman’s
murder was a warning to the church to stop interfering in
their business. The man left with the police and no investi-
gation was conducted.
Six months later, on December 15, 1999, a young Polish
woman arrived at the church. She had been beaten se-
verely, and she desperately wanted to go to the Polish
embassy. Tabaku drove her to a sister church in Tirana,
returning late in the day. Five days later, five to six police
officers arrived at Tabaku’s home. They beat him and made
him watch as they beat his father. The police then brought
Tabaku to the local police station, tied him to a chair, and
made him sit in a windowless, unlit cell for hours. Eventu-
ally one of the officers, whom Tabaku recognized from the
night of the first woman’s death, came into the cell and
began to threaten and beat Tabaku. Tabaku testified that
the man called him a Greek spy, apparently a reference to
his membership in the Orthodox church, and demanded
that Tabaku tell him “where you take those you kidnap
from us.” When Tabaku protested that he had done nothing
wrong, the officer demanded that Tabaku pay him $30,000.
Tabaku replied that he did not have the money, which
caused the beatings to resume.
After the officer threatened Tabaku’s wife and family,
Tabaku offered the officer $3,000, all of the money he had
available. The police brought Tabaku back to his house,
took the money, and said that they knew where they could
find the rest, which Tabaku took as a reference to his wife.
When Tabaku got home, he found his wife bleeding, her
clothes torn. She explained that with the help of Tabaku’s
cousin, who happened to have been with her, she had
escaped a kidnaping attempt.
A few days later, on Christmas Eve, Tabaku and his
cousin were leaving a coffee shop when someone Tabaku
4 No. 04-1689
recognized as being from the Albanian mafia opened a car
door and shot Tabaku’s cousin, killing him. The man turned
the gun on Tabaku, but he was able to escape. Tabaku went
to the police and gave them the name of the person who he
believed had killed his cousin, but they did nothing.
To corroborate the fact of the killing, the petitioners
submitted three newspaper articles recounting the mur-
der, although the details reported were not fully consis-
tent with one another. As petitioners’ counsel stated in
his closing argument, he included the articles “just to
show and to document that there was a murder . . . on
Christmas Eve, and it involved Mr. Tabaku’s cousin . . .
[and not to prove] the facts spelled out in that newspa-
per . . ., because clearly those journalists did not report
the incidences that Mr. Tabaku reported.”
Tabaku told the IJ that he feared he would be killed if
he stayed in Albania because he had identified his cou-
sin’s murderer. Tabaku testified that the murderer’s family
may have also wanted to kill him out of fear that he would
attempt to avenge his cousin’s death as part of a “blood
feud.” Fearing for his life and the safety of his family,
Tabaku moved with his wife and family from Korçë to
Tirana. After receiving a new threat in Tirana, he com-
plained to the police there, but they told him that events in
Korçë were outside their jurisdiction.
Afraid and finding no protection from the authorities,
Tabaku’s brother and father moved to an undisclosed town
in Albania. The couple crossed into Greece and eventually
arrived in the United States.
The IJ denied the couple’s request for asylum, withhold-
ing of removal, and relief under the Convention Against
Torture because he found that Tabaku’s testimony was not
credible. (The couple have abandoned their request for relief
under the Convention Against Torture by failing to raise it
in their opening brief. See, e.g., Balogun v. Ashcroft, 374
No. 04-1689 5
F.3d 492, 498 n.7 (7th Cir. 2004).) We can glean from the
IJ’s oral opinion five reasons why he disbelieved Tabaku’s
testimony. First, the IJ found a “very cardinal error or
omission on the part of the respondent, in not presenting
his spouse to testify as an occurrence witness as to possible
occurrences that took place to her knowledge, . . . which
would or may have corroborated the respondent’s testi-
mony.” Second, the IJ thought that the church’s letter in
support of Tabaku and Bino was too sparse to support
Tabaku’s story. In response to Tabaku’s argument that the
church wanted to keep its anti-sex- trafficking work a secret
and therefore was deliberately vague in its letter, the IJ
stated, “They would have us believe that a priest or a
bishop, when he has a moral and legal obligation to help a
parishioner, would refrain to do so, [which] also seems mind
boggling.” Third, for similar reasons, the IJ did not believe
that the driver of the church vehicle carrying the woman
who had been raped and murdered would be so afraid to
report the crime to the police: “If, in fact, these are Chris-
tians who assert their Christian faith, they have not only a
moral obligation, but they have a legal obligation to report
these incidents.” Fourth, the IJ did not believe that
Tabaku’s father and brother were in hiding. The IJ found it
“baffling” that “in this type of community in Albania, where
everyone knows where everyone is, that somehow or
another, the father and the brother’s identity and location
[could be] secreted away from this alleged mafia.” Finally,
the IJ discredited Tabaku’s version of his cousin’s murder
because of the three contradictory newspaper articles
the couple submitted with their application. According to
the IJ, Tabaku’s story was “contradicted by his own docu-
mentary evidence, which is also baffling.”
II
The petitioners appeal the IJ’s conclusion on two grounds.
First, they argue that the IJ infringed their due process
6 No. 04-1689
rights by using the verb “badger” to describe the level of
intensity allowed during cross-examination, which scared
Bino into not testifying. Second and more centrally, they
assert that there was insufficient evidence to support the
IJ’s adverse credibility determinations.
There is no question that non-citizens in the petitioners’
position are entitled to due process, see Zadvydas v.
Davis, 533 U.S. 678, 693 (2001), but we agree with the
BIA that the IJ did not impinge those rights here. As
the BIA concluded, “while we consider the Immigration
Judge’s use of that word to be incorrect, we cannot find that
the misstatement in question is grounds for finding a due
process violation requiring remand and rehearing of the
evidence.” To establish a due process violation, an asylum
petitioner must show that the alleged procedural violation
might have made a difference in the outcome of the proceed-
ings. Shahandeh-Pey v. INS, 831 F.2d 1384, 1389 (7th Cir.
1987). The couple argues that the use of the word “badger”
scared Bino and prevented her from testifying. Their
counsel conceded at oral argument, however, that Bino was
caring for her child outside the hearing room when the IJ
made this statement. Thus, it is unlikely that she even
heard the word when it was uttered. Furthermore, the
couple have not proffered any evidence that Bino would
have provided that would have added materially to
Tabaku’s testimony.
With the exception of its comment on the petitioners’ due
process claim, the BIA adopted and affirmed the IJ’s rul-
ing without issuing an opinion. See 8 C.F.R. § 1003.1(e)(4).
We therefore review the IJ’s decision directly. See, e.g.,
Lin v. Ashcroft, 385 F.3d 748, 751 (7th Cir. 2004). To qualify
for asylum, the couple must establish that they are “refu-
gees,” as defined by the Immigration and Nationality Act
(INA). See 8 U.S.C. § 1101(a)(42)(A) (defining “refugee” as
“any person who is outside any country of such person’s
nationality . . . who is unable or unwilling to return to . . .
No. 04-1689 7
that 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 opin-
ion”). Establishing the right to withholding of removal is
more difficult than proving an asylum claim. To receive
asylum, the couple need show only that there is
a reasonable possibility of future persecution, see INS
v. Cardoza-Fonseca, 480 U.S. 421, 440 (1987); Ahmad v.
INS, 163 F.3d 457, 460-61 (7th Cir. 1999), but to qualify for
withholding of removal, the couple must demonstrate that
there is a “clear probability of persecution” upon their
return to Albania. See INS v. Stevic, 467 U.S. 407, 413
(1984); Lin, 385 F.3d at 751.
We review the IJ’s conclusions under the substantial
evidence standard, meaning they will be upheld so long
as they are “supported by reasonable, substantial, and
probative evidence on the record considered as a whole.”
INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992); Ahmed
v. Ashcroft, 348 F.3d 611, 615 (7th Cir. 2003). While
deferential, the substantial evidence standard is not the
functional equivalent of no review at all. “[W]e will not
automatically 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). IJs must
support their credibility determinations with “specific
cogent reasons” that “bear a legitimate nexus to the find-
ing.” Ahmad, 163 F.3d at 461. We cannot uphold credibility
assessments unmoored from the record, based on nothing
but the IJ’s personal speculation or conjecture. See
Korniejew v. Ashcroft, 371 F.3d 377, 383 (7th Cir. 2004)
(citing Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002)).
As noted above, the IJ articulated five reasons why he
believed Tabaku was lying. We consider them one at a time.
First, the IJ stated that he “must assume” that Bino’s
failure to testify was part of the couple’s trial strategy,
having concluded that she would not be able to “withstand
8 No. 04-1689
cross-examination.” This suggests that the IJ was applying
the so-called missing witness rule found in traditional civil
litigation, which provides that “when a party can call a
witness to shed light on an event, but chooses not to, an
inference arises that the witness’ testimony, if produced,
would be unfavorable.” Multi-Ad Services, Inc. v. NLRB, 255
F.3d 363, 371 n.1 (7th Cir. 2001). The requirements for the
use of the rule are more stringent in criminal cases, see
United States v. Brock, 417 F.3d 692, 699 (7th Cir. 2005)
(before instruction will be given against the government,
defendant must show that the witness was peculiarly
within the government’s power to produce, that the testi-
mony would have shed light on the issues in the case, and
that it would not have been cumulative). This rule, how-
ever, assumes that the proceeding, whether a civil one or a
criminal one, is one that employs the classic adversary
system, in which each side is exclusively responsible for
presenting its own case. Immigration proceedings, as we
have observed in the past, are different:
An IJ, “unlike an Article III judge, is not merely the
fact finder and adjudicator but also has an obligation to
establish the record.” Yang v. McElroy, 277 F.3d 158,
162 (2nd Cir. 2002); see also Richardson v. Perales, 402
U.S. 389, 410 (1971) (holding that an administrative
law judge acts as “an examiner charged with developing
facts”).
Hasanaj v. Ashcroft, 385 F.3d 780, 783 (7th Cir. 2004).
In these special circumstances, there was no reason for
the IJ to draw any inference, positive or negative, from the
fact that Bino was sitting outside the room. Had he per-
ceived a gap in the record, she was functionally available to
be called at any time and thus was not “missing.” The IJ
had no basis in the situation presented here for concluding
that Tabaku’s failure to call her into the room undermined
his credibility.
No. 04-1689 9
Second, the IJ found the letter from the church too
vague to support Tabaku’s claim that he was helping
women escape from the sex-slave trade. The judge dis-
missed Tabaku’s explanation that the church wanted to
keep its work a secret with the observation that the notion
that “a priest or a bishop, when he has also a moral and
legal obligation to help a parishioner, would refrain to do so,
[ ] seems mind boggling.” There is certainly no basis in the
record to support the IJ’s personal belief that an Albanian
priest would obviously risk his entire congregation at home
by providing a detailed statement of the dangerous role the
Church was playing to help the victimized women, just to
assist a distant parishioner in his asylum claim. There is a
difference between something that merely fails to support
a claim and something that affirmatively undercuts the
claim. The worst one can say of the church’s letter is that it
fell in the former category.
Third, and similarly, the IJ did not believe Tabaku’s
testimony that a church driver would fail to report to the
local police his witnessing a rape and murder. Again, the IJ
based this conclusion on the fact that the driver was
a Christian who (in the IJ’s view) had “not only a moral
obligation, but . . . a legal obligation to report these inci-
dents.” Notwithstanding the IJ’s concept of what it means
to be a Christian, there is plenty of evidence that even
in the United States, where there may be no obvious threat
to the witness’s life, crimes go unreported. In 2001, for
example, the Department of Justice estimated that approxi-
mately half (50.6 percent) of violent crimes go unreported.
See Department of Justice Bureau of Statistics, Criminal
Victimization in the United States, 2001 Statistical Tables,
Table 91b, available at http://www. ojp.usdoj.gov/bjs/
pub/pdf/cvus01.pdf. The IJ’s assumption that the driver’s
decision not to report the crime somehow undercut Tabaku’s
version of the events has no basis in hard facts. Witnesses
can be intimidated, here as well as in other countries, and
10 No. 04-1689
Tabaku provided a convincing reason why this driver may
have been deterred from speaking up.
Fourth, the IJ did not believe that Tabaku’s father and
brother were in hiding. The IJ found it “baffling” that “in
this type of community in Albania, where everyone knows
where everyone is, that somehow or another, the father and
the brother’s identity and location [could be] secreted away
from this alleged mafia.” The government did not present
any evidence to the IJ concerning the Albanian mafia’s
omniscience. Tabaku told the IJ that his father and brother
had moved from Korçë to an undisclosed town in Albania.
According to the latest figures, there are 3.6 million people
living in Albania over an area of 28,748 square kilometers
(slightly larger than Maryland). See CIA Factbook, 2005,
available at http://www.cia.gov/
cia/publications/factbook/geos/al.html. Absent any informa-
tion in the record to the contrary, we find it entirely
possible that Tabaku’s family could escape the Albanian
mafia’s detection. Although it is the provenance of the IJ to
determine which plausible explanation is correct, we will
not uphold an IJ’s speculative alternative if it has no basis
in the record.
Finally, the IJ discredited Tabaku’s version of his cousin’s
murder because the three newspaper articles the couple
submitted with their application were contradictory.
Tabaku explained that he submitted the articles solely to
corroborate the fact of his cousin’s murder, not the exact
circumstances surrounding the killing. As their counsel
admitted, “those three newspapers, taken by themselves,
contradict one another dramatically.” Given the inconsisten-
cies in the articles, it is doubtful that the IJ could distill any
concrete information to compare to Tabaku’s version of
events. See Korniejew, 371 F.3d at 386 (noting with disfavor
“the increasing reliance by the BIA and IJs upon perceived
inconsistencies in testimony and lack of corroboration as the
basis for adverse credibility determinations”). Even if we
No. 04-1689 11
were to find that the articles’ inconsistencies made
Tabaku’s testimony less believable, we would not feel
confident affirming the removal order on such flimsy
grounds. Cf. Georgis, 328 F.3d at 970 (“[H]aving found that
the other five reasons given by the IJ for discrediting [the
petitioner] are either unsupported by the evidence in the
record or based on incomplete or improperly excluded
evidence, we are not inclined to defer to his credibility
determinations on this remaining sixth ground alone.”).
The couple’s claim failed because the IJ concluded Tabaku
was lying. In some cases, we may uphold an IJ’s opinion
even if we disagree with his adverse credibility determina-
tions, because we find adequate the IJ’s conclusion in the
alternative that, for example, the petitioner did not show
that he was a member of a protected group. We cannot do
that in this case. Disbelieving the couple’s persecution
claims, the IJ concluded the couple fled Albania for “eco-
nomic reasons.” He thus did not “consider the respondent’s
flight relative to a membership in a particular social group
or for political opinion.” Since the IJ’s opinion did not reach
the question whether the petitioners fall within a protected
group, but rested almost entirely on an adverse credibility
determination that the record does not support, we must
vacate the removal order. The couple may or may not have
a valid asylum claim, but it is not for us to determine that
ultimate question, nor was the BIA entitled to do so based
on the flawed record before it.
III
Because we find insufficient evidence to support the IJ’s
adverse credibility determination, we GRANT the petition for
review, VACATE the removal order, and REMAND for further
proceedings consistent with this opinion.
12 No. 04-1689
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-29-05