Musollari, Albert v. Mukasey, Michael B. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 06-4107
A LBERT M USOLLARI and V ERGJINUSH M USOLLARI,
Petitioners,
v.
M ICHAEL B. M UKASEY, Attorney General
of the United States,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals.
Nos. A95-395-303 & A95-395-304
A RGUED S EPTEMBER 18, 2007—D ECIDED S EPTEMBER 19, 2008
Before E VANS, W ILLIAMS, and S YKES, Circuit Judges.
S YKES, Circuit Judge. Albert Musollari and his wife,
Vergjinush, are natives and citizens of Albania who
entered the United States in 2001 on visitor’s visas. They
overstayed and then sought asylum, withholding of
removal, and protection under the Convention Against
Torture (“CAT”). An Immigration Judge (“IJ”) denied their
2 No. 06-4107
application, finding Musollari’s testimony incredible, and
the Board of Immigration Appeals (“BIA”) affirmed.
Because the decisions by the IJ and the BIA are sup-
ported by substantial evidence and the record does not
compel a contrary conclusion, we deny the Musollaris’
petitions for review.
I. Background
The Musollaris came to the United States from Albania
in January 2001 on visas that permitted them to stay for
six months. They have two children: Kevin, who was born
in Albania, was left behind and remains there; and
David, who was born in the United States. The Musollaris
did not return to Albania by their departure date and
subsequently filed an application seeking asylum, with-
holding of removal, and protection under the CAT.1 The
petition was rejected by an asylum officer, and the
Musollaris appeared before an IJ for removal proceedings.
At the hearing Musollari recounted a history of hard-
ships he said he and his family had suffered as a result
of his involvement in Albanian politics. What follows is
a summary of his testimony.
1
Vergjinush Musollari’s application was derivative of her
husband’s. See 8 U.S.C. § 1158(b)(3)(A) (“A spouse or child . . . of
an alien who is granted asylum under this subsection may, if
not otherwise eligible for asylum under this section, be
granted the same status as the alien if accompanying, or
following to join, such alien.”).
No. 06-4107 3
Musollari served in the Albanian military during the
final days of communist control in the early 1990s. In
1991 Musollari disobeyed a direct order from his superior
officer to fire on a group of civilians who were attempting
to flee the country by boat. Fearing reprisal for his dis-
obedience, Musollari boarded the boat with the civilians;
it was bound for Italy. Italian officials, however, returned
Musollari and other soldiers to Albania, and upon their
return he and the others were arrested and beaten by
Albanian officials.
In 1992 the communist government fell and the Demo-
cratic Party, of which Musollari is a member, took power.
That party’s electoral superiority lasted until 1997 when
the Socialist Party swept the elections. Musollari, however,
claimed that the Socialists seized the reins of power “by
force of arms,” through violence and intimidation. He
testified that he became a target of these tactics after he
gave a speech at a protest rally in his hometown of
Korcë. Musollari was forced to flee, and his home was
ransacked during his absence. His neighbors told him
the police, not random intruders, were the culprits.
Musollari was arrested in October 1997 and again in
September 1998. He testified that he was beaten during
these detentions and interrogated about his activities in
the Democratic Party; he also said the police tried to
force him to spy on other members of the party. The police
arrested Musollari again in November of 2000, after he
served as an election observer for the Democratic Party
during elections the previous month. He claimed that in
the course of his duties as an election observer, he wit-
4 No. 06-4107
nessed voting irregularities that enabled the Socialist
Party to win the election. He testified that he was again
interrogated about the Democratic Party’s activities and
threatened with violence against his family.
After this last incident, the Musollaris decided to flee
Albania. They obtained nonimmigrant visas permitting
them to come to the United States for six months, but were
forced to leave their son, Kevin, behind. They arrived in
the United States in 2001, overstayed, and sought asylum
in 2002.
The Musollaris went before an IJ in the fall of 2003. The
IJ denied their claims for asylum, withholding of removal,
and protection under the CAT because he found
Musollari’s testimony incredible and lacking corroboration.
Further, the IJ denied voluntary departure because he
believed that Musollari was not of good moral character.
The Musollaris appealed, and the BIA affirmed the IJ’s
decision except as to voluntary departure. The case was
remanded to the IJ on that issue.
At the subsequent hearing before the IJ, the Musollaris
withdrew their application for voluntary departure and
instead sought to present new evidence on their claims.
They did not state what the new evidence was, however.
So the IJ denied the request and entered an order of
removal. The Musollaris again appealed, and the BIA
affirmed.
II. Discussion
The BIA adopted the IJ’s opinion, so we base our review
on the IJ’s analysis. Balogun v. Ashcroft, 374 F.3d 492, 498
No. 06-4107 5
(7th Cir. 2004). Our review of an order denying asylum
based on a failure to prove eligibility is extremely deferen-
tial; “the administrative findings of fact are conclusive
unless any reasonable adjudicator would be compelled
to conclude to the contrary.” 18 U.S.C. § 1252(b)(4)(B);
Sina v. Gonzales, 476 F.3d 459, 461 (7th Cir. 2007); Balogun,
374 F.3d at 498 (holding that the IJ’s findings may be
overturned only if “the evidence compels a different
result”). If an alien demonstrates eligibility, the Attorney
General has discretion to grant or deny asylum.
Ghebremedhin v. Ashcroft, 392 F.3d 241, 244 (7th Cir. 2004).
“[T]he Attorney General’s discretionary judgment
whether to grant relief under section 1158(a) of this title
shall be conclusive unless manifestly contrary to the law
and an abuse of discretion.” 8 U.S.C. § 1252(b)(4)(D).
The IJ’s credibility determinations are also accorded
substantial deference and should be overturned only
“under extraordinary circumstances.” Gjerazi v. Gonzales,
435 F.3d 800, 807 (7th Cir. 2006). Deference is not unlim-
ited, however; the IJ’s rulings cannot be based on “conjec-
ture” or “insufficient or incomplete evidence” and instead
“must be supported by specific, cogent reasons” which
“bear a legitimate nexus to the finding.” Id.
The Attorney General has discretion to grant asylum
to an alien “refugee.” 8 U.S.C. § 1158(b)(1)(A). A “refugee”
is one who is unable or unwilling to return to his
country of origin “because of persecution or a well-
founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or
political opinion.” 8 U.S.C. § 1101(a)(42). The applicant
6 No. 06-4107
has the burden of proving eligibility for asylum, and the
applicant’s testimony alone may be sufficient to sustain
the burden if the applicant’s testimony is credible.
8 C.F.R. § 208.13(a). Refugee status may be proven in one
of two ways. First, “if an applicant proves past persecution,
a rebuttable presumption arises that the alien has a well-
founded fear of future persecution.” Capric v. Ashcroft,
355 F.3d 1075, 1084 (7th Cir. 2004); 8 C.F.R. § 208.13(b)(1).
Second, an applicant may prove a well-founded fear of
persecution by demonstrating his “fear is subjectively
genuine and objectively reasonable in light of credible
evidence.” Capric, 355 F.3d at 1085; 8 C.F.R. § 208.13(b)(2).
The subjective component “turns largely upon the ap-
plicant’s own testimony and credibility,” Capric, 355 F.3d
at 1085, while the objective component requires the ap-
plicant to show that he will be singled out for persecu-
tion or that a group to which the applicant belongs is
subject to a pattern or practice of persecution. 8 C.F.R.
§ 208.13(b)(2).2
2
In order to obtain relief under 8 U.S.C. § 1231(b)(3) for
withholding of removal, an applicant must “demonstrate a
clear probability of persecution,” which is a more demanding
burden than that for asylum. Balogun, 374 F.3d at 508. Similarly,
the standard for withholding of removal under the CAT is
that it is “more likely than not” that the applicant will be
tortured if returned. 8 C.F.R. § 1208.16(c)(2). This too is higher
than the burden for asylum. See Dandan v. Ashcroft, 339 F.3d
567, 575 n.7 (7th Cir. 2003). Thus, if the petitioners failed to
prove their claim for asylum because Musollari’s testimony
lacked credibility, the other claims must also fail.
No. 06-4107 7
Thus, asylum cases often turn on the IJ’s credibility
determination; an adverse credibility finding will doom
the applicant’s claimed eligibility as a “refugee” under
either method of proof. “ ‘A credibility analysis assesses
the applicant’s claim only for internal consistency, detail,
and plausibility, typically demonstrated by background
evidence concerning general country conditions, if avail-
able . . . .’ ” Gjerazi, 435 F.3d at 808 (quoting Capric, 355 F.3d
at 1085); see also 8 U.S.C. § 1158(b)(1)(B)(iii).3 Corroboration
is generally not required to meet the petitioner’s burden
of proof unless the IJ finds the testimony not credible
without it. Capric, 355 F.3d at 1085-86 & n.4 (discussing in
which situations corroboration is required to meet peti-
tioner’s burden of proof); see also 8 C.F.R. § 208.13(a) (“The
testimony of the applicant, if credible, may be sufficient
to sustain the burden of proof without corroboration.”)
(emphasis added).
In this case, the IJ found Musollari not credible, resting
this determination on a number of factors, only some
of which (as we will explain) are supported by the record.
First, the IJ viewed Musollari’s claim that he was interro-
gated and threatened after serving as an election observer
with skepticism, saying such claims were extremely
common amongst applicants from Albania. Relatedly, the
3
Section 1158(b)(1)(B) was added by the REAL ID Act of 2005,
Pub. L. No. 109-13, § 101(a)(3), and applies only to applications
for asylum that were filed on or after May 11, 2005. Id.
§ 101(h)(2); see also Oyekunle v. Gonzales, 498 F.3d 715, 717-18
(7th Cir. 2007). Musollari’s application was received on Feb-
ruary 1, 2002.
8 No. 06-4107
IJ disbelieved Musollari’s claim that the Socialist Party
asked him in November 2000 to manipulate an election
that had occurred the month before. The IJ also thought
Musollari’s arrests in 1997 and 1998 were not significant
enough to warrant detailed consideration. Next, the IJ
noted that Musollari’s testimony about the Socialist
Party seizing control of the government in 1997 through
force and violence was “diametrically opposed” by infor-
mation in country reports and other sources of historical
data establishing that the Democratic government col-
lapsed that year because of scandal and chaos associated
with the failure of large “pyramid schemes.” The IJ
also faulted Musollari’s failure to produce corroboration
for his two arrests and the claimed ransacking of his
home by the police. Finally, the IJ noted that Musollari
conceded he lied to American officials about his purpose
for coming to the United States in order to obtain a visa.
As we have noted, our review of the record reveals a
number of mistakes in the IJ’s reasoning. Musollari testi-
fied that he was an election observer in October of 2000
and was detained and threatened by police in November
of 2000 based on this political activity. The IJ found this
implausible based in part on his personal experience
with Albanian asylum seekers—90% of whom, the IJ
said, claim to have been Albanian election observers.
The IJ was entitled, based on his experience adjudicating
these claims, to question Musollari further on the
details of his appointment and service as an election
observer—and should have done so—but this in itself is
an insufficient ground on which to rest an adverse cred-
ibility finding.
No. 06-4107 9
The IJ also erred in evaluating the reasons for Musollari’s
detention in November 2000. Musollari never claimed, as
the IJ asserted, that Socialist Party agents asked him to
manipulate the results of the previous month’s election.
Instead, he testified that they “wanted me to give all the
information about the members of the democratic party or
to our plans where [sic], and also tell the names of the
democratic party.” Demanding the names and locations
of local Democratic Party members, as well as information
about their planned activities, is not the same thing as
attempting to coerce the manipulation of a vote that
occurred a month earlier. The latter might be factually
implausible; the former certainly is not. See Cecaj v. Gonza-
les, 440 F.3d 897, 898 (7th Cir. 2006) (noting that
“[p]ersecution of [Albanian] Democratic Party activists
during this period has been found in a number of cases”).
Musollari’s testimony on this point simply is not suscepti-
ble of the interpretation the IJ placed upon it.
Finally, the IJ inexplicably stated that Musollari had
not claimed he was mistreated during his two detentions
in October of 1997 and September of 1998, and therefore
these arrests were not serious enough to warrant further
consideration.4 Musollari’s testimony was directly to the
contrary, however. He stated that in October 1997 a
number of Socialist Party members attempted to
4
The IJ also believed that the second arrest occurred in July
1998; in his brief Musollari calls this a “disturbing” mistake
because he was “arrested and beaten in October of 1998.” Based
on our review of the record, both dates are incorrect. Musollari
testified that the second arrest occurred on September 14, 1998.
10 No. 06-4107
engage Musollari in a debate while at a restaurant.
Musollari refused to be drawn in and went home. Soon
thereafter, the police came to his house and started beating
him before taking him to the station. Once there, he
testified, he was threatened with death and was also
beaten with rubber sticks. Musollari also testified that
he was arrested in September 1998 on false charges of
having illegal firearms in his home. He was taken to a cell
where police “us[ed] violence” against him and interro-
gated him about his involvement in the Democratic Party.
The IJ either misunderstood or mischaracterized
Musollari’s testimony about his arrests.
Notwithstanding these mistakes, however, the balance
of the evidence relied on by the IJ supports the adverse
credibility determination. Most significantly—and this
was emphasized by the BIA in affirming the IJ’s deci-
sion—the IJ rightly noted that Musollari’s testimony
regarding the Democratic Party’s loss of power in 1997
was wholly inconsistent with what is known to have
occurred in Albania that year. Musollari testified that the
Socialists seized control from the Democratic Party in a
violent overthrow of the government. In reality, the
government of the ruling Democratic Party was brought
down by the collapse of large “pyramid schemes,”
which left thousands penniless. B UREAU OF D EMOCRACY,
H UMAN R IGHTS & L ABOR, U.S. D EP’T OF S TATE, A LBANIA :
P ROFILE OF A SYLUM C LAIMS & C OUNTRY C ONDITIONS 3
(May 2001); T HE E UROPA W ORLD Y EAR B OOK O NLINE,
A LBANIA : C OUNTRY P ROFILE, R ECENT H ISTORY (Oct. 2003);
C OUNTRY INFORMATION & P OLICY U NIT, U.K. B ORDER
A GENCY, A LBANIA A SSESSMENT ¶ 4.7 (July 2003). Members
No. 06-4107 11
of the Democratic Party were believed to be complicit in
the pyramid schemes; civil and economic chaos followed,
and the government used force in an attempt to put
down the demonstrations. Representatives of both the
Democratic and Socialist parties agreed to abide by the
results of elections in June and July of 1997, which, as we
have noted, the Socialists swept. B UREAU OF D EMOCRACY,
H UMAN R IGHTS & L ABOR, U.S. D EP’T OF S TATE, A LBANIA :
P ROFILE OF A SYLUM C LAIMS & C OUNTRY C ONDITIONS 3
(May 2001); T HE E UROPA W ORLD Y EAR B OOK O NLINE,
A LBANIA : C OUNTRY P ROFILE, R ECENT H ISTORY (Oct. 2003).
Musollari attempts to minimize the stark differences
between his testimony and the factual history by arguing
that he simply gave “his impression about what tran-
spired.” But this sort of dramatic discrepancy between
an asylum seeker’s testimony and the established back-
ground facts may form the basis of an IJ’s adverse cred-
ibility finding. See Capric, 355 F.3d at 1085. Although we
have repeatedly cautioned against overreliance on gen-
eralized information in country profiles or State Depart-
ment country reports, see Oyekunle v. Gonzalez, 498 F.3d
715, 716 (7th Cir. 2007); Dong v. Gonzales, 421 F.3d 573, 578
(7th Cir. 2005), it is permissible for an IJ to contrast an
asylum applicant’s testimony with specific historical facts
provided in a country report, see Huang v. Gonzales, 453
F.3d 942, 947 (7th Cir. 2006), and that is what the IJ did
here.
Once Musollari’s credibility was called into question, the
IJ was entitled to consider the lack of corroboration for
other aspects of his testimony. See Capric, 355 F.3d at 1085-
12 No. 06-4107
86 (“[I]f the IJ finds the testimony to be incredible, then
a convincing explanation of the discrepancies or extrinsic—
and credible—corroborating evidence is required.”); see also
Ikama-Obambi v. Gonzales, 470 F.3d 720, 725 (7th Cir. 2006)
(“[A]n IJ may disbelieve an applicant because she fails
to provide corroborating evidence, and subsequently
deny her claim.”). Despite having nearly two and a half
years to compile his case, Musollari presented no evi-
dence to corroborate the core factual aspects of his
claim: his arrests in 1997 and 1998—during which he
testified that he was mistreated—or the ransacking of his
house by the police in September of 1997. The IJ noted that
corroborating testimony or affidavits from family or
friends might reasonably have been obtained “insofar as
Albania is not [now] experiencing any civil strife or war
and that there are regular commercial contacts and mail
contacts with that country.”
Finally, the IJ relied on Musollari’s admission that he
gave false information to the American Embassy when
applying for a travel visa. “Inconsistencies that do not
relate to the basis of the applicant’s alleged fear of persecu-
tion are less probative than inconsistencies that do.”
Balogun, 374 F.3d at 504; see also Korniejew v. Ashcroft, 371
F.3d 377, 383-84 (7th Cir. 2004) (finding that a discrepancy
on a collateral matter cannot “form the basis for an adverse
credibility finding” on its own). “Nevertheless, multiple
misrepresentations to Agency officials can serve as a
factor in the credibility calculus . . . .” Balogun, 374 F.3d
at 504. Accordingly, although the errors in the IJ’s analysis
give us pause, we conclude that the evidence and suf-
ficent “specific, cogent reasons” support the adverse
No. 06-4107 13
credibility finding; the record does not compel a con-
trary conclusion.
The Musollaris also challenge the IJ’s refusal to hear new
evidence on remand, but this argument is a nonstarter.
They never explained to the IJ or the BIA what this new
evidence might be, nor have they favored us with a
description. Their failure to do so is fatal to the argument.
Rehman v. Gonzales, 441 F.3d 506, 509 (7th Cir. 2006)
(“[C]ourts do not set aside agencies’ decisions unless
mistakes cause prejudice, and how could we ascertain
prejudice without an offer of proof or some substitute?”).
The Musollaris’ persistent failure to identify their “new
evidence” leads to the inevitable conclusion that “there
is nothing more to offer.” Id. The petition for review
must therefore be D ENIED.
W ILLIAMS, Circuit Judge, dissenting. Because I would
grant the Musollaris’ petition for review, I respectfully
dissent. As the majority acknowledges, there are significant
flaws in the IJ’s credibility determination. Most notably,
the IJ completely ignored Albert Musollari’s testimony
that he was beaten on four occasions by police controlled
by the Socialist Party, testimony that was central to
Musollari’s claim that he has been persecuted in the past.
14 No. 06-4107
In my view, this flaw alone renders the IJ’s credibility
determination defective. But even if the IJ’s credibility
determination could be supported by the reasons he
provided (most of which were also defective), I submit
that the reason relied upon by the majority does not
justify an adverse credibility determination.
Musollari, a member of the Democratic Party in Albania,
testified that he was imprisoned and beaten by members of
the Socialist Party working for the government on four
separate occasions. The first imprisonment, in 1991, lasted
one week. Musollari was held in a cell with sixty to seventy
other individuals, beaten regularly, and subjected to
“psychotic pressure.” The second imprisonment, in 1997,
occurred after Musollari spoke out against what he be-
lieved to be fraudulent actions by the Socialist Party in
the June and July 1997 elections (which the Socialist Party
won). His house was ransacked and later he was taken
from his home and held in prison for a day. A policeman
put his boot on Musollari’s neck and threatened to kill
him, and he was visited in his cell every two hours by
policemen who beat him with rubber sticks and told
him they were going to punish him for organizing against
the Socialist Party. The third imprisonment occurred in
1998, when Musollari was taken to the police station and
put in a dark cell. His wrists were bound with barbed wire
and he was beaten. The policemen interrogated him
regarding his involvement with the Democratic Party and
threatened him. The fourth imprisonment occurred in
November 2000, when because of Musollari’s refusal to
help the Socialist Party during the October elections,
No. 06-4107 15
policemen arrested him at a Democratic Party meeting and
held him all day, threatening his wife and child. All of
these incidents occurred when the Socialist Party was
the majority party in government.
Inexplicably, in his order denying asylum, the IJ made
no mention whatsoever of any of the physical mistreat-
ment that Musollari suffered during his prison visits. In
fact, the IJ went so far as to state, several times, that
Musollari did not allege he was mistreated during the 1997
and 1998 detentions. For example, he stated, “I don’t think
that the brief detention on [sic] October of 1997, even if
credible, is important to the respondent’s claim, insofar as
he was not mistreated and was released after only one day.”
(Emphasis added.) He also expressed the following
comment regarding the same imprisonment: “He was
held all day but released the following day without charge.
He makes no contention that he was mistreated during his
detention.” (Emphasis added.) Regarding the 1998 impris-
onment, the IJ stated only that his assessment was the
same as his assessment of the 1997 imprisonment: “That
he was held only for a brief time. There was an accusa-
tion that he was harboring illegal firearms and then
released.”
In my view, these comments demonstrate a critical defect
in the IJ’s credibility determination. Musollari’s asylum
application is based on his fear of persecution by the
Socialist Party upon his return to Albania, which means
his testimony regarding these beatings is central to his
claim. The IJ’s comments reveal that he simply ignored
Musollari’s testimony on this matter. This is something
16 No. 06-4107
the IJ is not permitted to do, and we have overturned
credibility determinations in similar cases. See, e.g., Adekpe
v. Gonzales, 480 F.3d 525, 530 (7th Cir. 2007) (“We must
affirm the IJ’s decision unless it is not supported by
substantial evidence . . . or unless the IJ ignored probative
evidence.”); Tolosa v. Ashcroft, 384 F.3d 906, 909 (7th Cir.
2004); see also Agbor v. Gonzales, 487 F.3d 499, 504 (7th Cir.
2007); Nakibuka v. Gonzales, 421 F.3d 473, 477 (7th Cir. 2005)
(“The testimony that the IJ ignored was central to
Nakibuka’s claim of persecution.”); compare Iglesias v.
Mukasey, No. 07-2910, 2008 WL 3877302, at *3 (7th Cir.
Aug. 22, 2008) (“a claim that the BIA has completely
ignored the evidence put forth by a petitioner is an al-
legation of legal error”).
Given the IJ’s treatment of Musollari’s uncontradicted
evidence regarding the basis for his claim, I do not think
the IJ’s credibility determination is salvageable. But
despite this critical error, the majority upholds the IJ’s
adverse credibility determination because Musollari’s
description of events in 1997 does not comport with what
is known to have occurred in Albania during that year.
However, that testimony, albeit inaccurate, is tangential
to his claim and therefore does not discredit his claim.
To begin, I am not sure Musollari’s description of the
election in 1997 is diametrically opposed to the report
relied upon by the IJ in his determination. Musollari
testified that the Socialist Party won the election “by using
the force of the weapons and by corruption.” The report
states that election campaigning for the 1997 election
was “marred by violence” and despite the presence of
No. 06-4107 17
the Multinational Protection Force (which had been sent
to Albania by the United Nations to restore civil order
in April 1997) three people were reportedly killed in
violent incidents during the voting. It is true that Musollari
did not mention the Pyramid Scheme which caused the
civil unrest in early 1997, and it is also true that the
results of the 1997 election were certified as having
been satisfactorily conducted. But it is not clear to me
from the transcript that Musollari was actively lying
about what happened. At worst, Musollari’s description
was an exaggeration of those events told from the per-
spective of someone who affiliated himself with the
losing party in those elections.
Of course, an adverse credibility determination can be
supported by a finding that a petitioner is exaggerating
about something but it depends on the context in which
the petitioner is offering the information at issue. See Hanaj
v. Gonzales, 446 F.3d 694, 700 (7th Cir. 2006) (“An IJ
must analyze inconsistencies against the backdrop of the
whole record, as one factor in the overall credibility
determination.”); Balogun v. Ashcroft, 374 F.3d 492, 504
(7th Cir. 2004) (“Inconsistencies that do not relate to the
basis of the applicant’s alleged fear of persecution are
less probative than inconsistencies that do.”).
Even if Musollari’s description of the events of 1997
was completely inaccurate, Musollari was not asked to
provide a factually correct history of Albania in 1997.
Rather, he described the events that transpired in Albania
in 1997 to provide the background for one of his alleged
beatings by the Socialist Party. His description of the
18 No. 06-4107
events of 1997 was in response to his counsel’s question,
“How did this ‘suffering’ begin for you?” and “What, if
anything, in particular happened to you in July of 1997?”
(Emphasis added.) His suffering was driven by his per-
spective; because Musollari believed that the 1997
elections were corrupt, he spoke out against the Socialist
Party, which resulted in his 1997 imprisonment and
beating.
We have held on many occasions that for an inaccuracy
or falsehood to provide an adequate basis for an
adverse credibility finding, that inaccuracy must go to the
“heart” of the petitioner’s claim for asylum. Adekpe, 480
F.3d at 531 (7th Cir. 2007); Kllokoqi v. Gonzales, 439 F.3d 336,
341 (7th Cir. 2005); Hanaj, 446 F.3d at 700; Capric v. Ashcroft,
355 F.3d 1075, 1090 (7th Cir. 2004) (quoting cases for
the proposition that minor inconsistencies or omissions
will not support an adverse credibility finding); Korniejew
v. Ashcroft, 371 F.3d 377, 383-84 (7th Cir. 2004) (petitioner’s
factual inaccuracy was not the “linchpin” of her asylum
claim). It bears noting that even after the passage of the
Real ID Act (which does not affect this claim), we have
held that the IJ still must consider the purported inaccu-
racy within the context of all relevant factors. Kadia v.
Gonzales, 501 F.3d 817, 822 (7th Cir. 2007) (“[Under the
Real ID Act], [t]he immigration judge may consider
inaccuracies or falsehoods that do not go to the heart of
the asylum applicant’s claim, but he can do so only as
part of his consideration of ‘the totality of the circum-
stances, and all relevant factors.’ ”).
I would follow these cases here because Musollari’s
impression of the 1997 elections does not go to the heart
No. 06-4107 19
of his claim. When viewed in the context of the entire
hearing, Musollari’s description of the events that tran-
spired in Albania in 1997 is entirely peripheral to his
claim, which is that he fears returning to Albania
because he was beaten by members of the Socialist Party
working for the government on four separate occasions.
Furthermore, the point Musollari was making is that he
was beaten for expressing his opinion about the 1997
elections and the Socialist Party. The truth of his opinion
is not relevant—it matters only whether he became a
target of violence based on his beliefs. That Musollari’s
impression of how the Socialist Party gained power in 1997
differs from historically known facts has no bearing on
whether he was beaten by the Socialist Party, nor does it
reveal anything about his fear for his safety. The IJ does not
explain otherwise. See San Kai Kwok v. Gonzales, 455 F.3d
766, 771 (7th Cir. 2006) (whether petitioner had a “bona
fide relationship” with her husband had no bearing on
whether she was subjected to an involuntary abortion,
and the IJ did not explain his reasoning to the contrary).
Without addressing Musollari’s testimony that he was
beaten and how that might relate to his impression
of historical events, a credibility determination based on
that impression alone bears no connection to Musollari’s
claim. Indeed, if Musollari is telling the truth that he
was beaten by the Socialist Party for speaking out about
the elections in 1997, it might explain his colored percep-
tion of the elections.
Ultimately, the IJ never made a credibility determina-
tion as to the key issue of whether Musollari’s fear of
20 No. 06-4107
persecution is credible. Had he relied on Musollari’s
inaccurate description of events to find that everything
Musollari said (including his testimony regarding the
beatings) was false, I think this might be a different case.
But the IJ does not connect this factual inaccuracy to
Musollari’s claim. In my view, this gap in the IJ’s reasoning
cannot be fixed unless the IJ properly considers Musollari’s
testimony that he was beaten and deems it credible or
incredible. That is the testimony that goes to the very
heart of his claim and the fact that the IJ completely
disregarded it taints the entire determination. Cf. Georgis
v. Ashcroft, 328 F.3d 962, 970 (7th Cir. 2003) (“[H]aving
found that the other five reasons given by the IJ for dis-
crediting [the petitioner] are either unsupported by the
evidence in the record or based on incomplete or improp-
erly excluded evidence, we are not inclined to defer to his
credibility determinations on this remaining sixth ground
alone.”).
I express no opinion as to the ultimate merits of
Musollari’s asylum claim or as to his credibility. But
because the IJ’s decision completely ignored testimony
that goes to the heart of the asylum claim, I submit that
such a determination cannot be saved by reliance on
tangential inaccuracies. I would grant the petition for
rehearing.
9-19-08