Gjerazi, Arqile v. Gonzales, Alberto R. ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2344
ARQILE GJERAZI, KLARITA GJERAZI,
ALBA GJERAZI, and JUSTIN GJERAZI,
Petitioners,
v.
ALBERTO GONZALES,1
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A77-835-484
____________
ARGUED APRIL 14, 2005—DECIDED JANUARY 30, 2006
____________
Before COFFEY, RIPPLE, and KANNE, Circuit Judges.
COFFEY, Circuit Judge. Arqile Gjerazi (“Gjerazi”), his
wife, Klarita, and their two children, Alba and Justin, are
citizens of Albania. In March of 1999, the Gjerazi family
fled Albania for the United States. The following November,
Gjerazi filed an application for asylum on behalf of himself
and his family with the Immigration and Naturalization
1
Pursuant to Federal Rule of Appellate Procedure 43(c), we
have substituted the current Attorney General of the United
States, Alberto Gonzales, as the named respondent.
2 No. 04-2344
Service (“INS”),2 seeking political asylum, withholding of
removal, protection under the Convention Against Torture,
and, in the alternative, voluntary departure.3 The claims of
Gjerazi’s wife and children are derivative of Gjerazi’s, and
thus we focus on his petition and claims. Although the
Immigration Judge (“IJ”) found Gjerazi’s testimony to be
credible, he determined that Gjerazi had failed to establish
that his persecution was politically motivated. The IJ
denied Gjerazi’s application for asylum as well as his
request for voluntary departure and ordered the Gjerazi
family to return to Albania. The Board of Immigration
Appeals (“BIA”) adopted and affirmed the IJ’s decision in a
one-paragraph opinion. We grant the Gjerazi family’s
petition for review and remand this case for further pro-
ceedings, holding that the IJ and BIA’s conclusions are not
supported in the record with substantial evidence.
I. Background
A. The Gjerazi Family’s Life in Albania
Gjerazi, his wife, and their two children are natives of
Albania. Gjerazi testified that he had been an active
member of the Democratic Party, the largest opposition
party to the Socialist Party in Albania, since 1992. In
November of 1993, Gjerazi was elected to the position of
2
On March 1, 2003, the INS ceased to exist as an independent
agency within the Department of Justice, and its functions were
transferred to the newly formed Department of Home-
land Security.
3
Petitioners do not challenge the denial of their request for
protection under the Convention Against Torture. Thus, they have
abandoned that claim in this review petition. See Balogun v.
Ashcroft, 374 F.3d 492, 498 n.7 (7th Cir. 2004) (noting that claims
not addressed in opening briefs are abandoned).
No. 04-2344 3
“secretary” for the Democratic Party in the Albanian city of
Fier, a position he held until July of 1997. He testified that
his duties included contacting Albanians to promote the
ideology of the Democratic Party as well as maintaining
quotas and collecting membership dues for the Fier region.
He also assisted in preparations for the 1997 elections,
including sponsoring and organizing Democratic Party
meetings, and was selected to represent the party at a
polling station in Fier.
Not only was Gjerazi an active member of the Democratic
Party, but previous generations of his family had similarly
taken active roles in opposing the Socialist Party. In his
application for asylum, he stated that his political activism
as well as that of past generations of his family resulted in
frequent persecution by Albanian authorities. For example,
during his asylum hearing, he testified that his uncle and
his mother’s uncle had been imprisoned by the Communist
Party for twenty-four and eighteen years, respectively. As
a result of his family’s history of political activism, when he
was a child, the Socialist government confiscated land and
a store that had been in his family for years. In 1990, the
property was returned to Gjerazi’s mother, and, upon her
death in 1992, Gjerazi became the owner. Despite these
past problems, Gjerazi testified that once the property was
returned to his family, he made a “good living” as a store
owner. He drew approximately $3,000 in profit each month
and was considered “quite wealthy” by Albanian standards.
Despite his status in Albania as a successful business
owner, like past generations of his family, Gjerazi’s political
activism precipitated several unfortunate events. On June
5, 1997, while en route to a party meeting in Tirana,
Albania’s capital city, the taxi transporting Gjerazi was
stopped by two masked men who forced him out of the
vehicle and assaulted him, beating him with the butt of a
gun and kicking him until he lost consciousness. Gjerazi
testified that as they beat him, the men stated that he
4 No. 04-2344
would not be going “to meet the celebration in Tirana.” He
did not continue on to Tirana or seek medical attention.
Upon returning to his home that evening, he received an
anonymous telephone call during which the caller threat-
ened him with “very bad consequences” if he did not adjust
the election returns in order to ensure the success of the
Socialist Party. Gjerazi testified that because he was the
person responsible for the polling station in Fier, he
“figured that [the callers] wanted [him] to manipulate the
results and the scores” in order that the Socialist Party
would prevail. Although he reported the incident to Demo-
cratic Party officials as well as to the police, no action was
taken to locate the assailants or to determine who made the
call and the ensuing threat.
Three days after he was attacked on the way to Tirana, a
second major incident befell the Gjerazi family. On June 8,
1997, Gjerazi’s two-year-old son, Justin, was kidnaped
while playing in his own backyard. Gjerazi claimed that two
officials from the Socialist Party, Argon Mecallin and Agim
Idrizi, were responsible for the kidnaping. He testified that,
approximately one half hour after the child’s abduction, the
kidnapers contacted his father-in-law and conditioned the
child’s release on the Socialist Party winning the vote in
Fier. According to Gjerazi, his father-in-law told the
kidnapers that Gjerazi was not the “main decision-maker”
at the polling station and that he could not guarantee the
results they wanted. Gjerazi immediately contacted the
police, controlled at that time by the Democratic Party.
While the police were sympathetic, they were unable to
secure his son’s release, so Gjerazi enlisted the aid of his
wife’s uncle.4 The uncle located the child and was able to
negotiate the boy’s release in exchange for a ransom of
4
Gjerazi described his wife’s uncle as “a very popular person”
in Fier.
No. 04-2344 5
$5,000. A few weeks after Justin’s kidnaping, the Socialist
Party won the election, including the local election in Fier.
On July 2, 1997, approximately one month after his
son’s abduction and a few days after the Socialist Party
regained control of Albania, Gjerazi’s wife, Klarita, was
accosted and beaten by two masked men. Klarita testified
that when she arrived home, the men struck her from
behind, entered the home, and began calling out for Gjerazi.
When they discovered he was not in the apartment, they
beat her into a state of unconsciousness. After the attack,
Klarita spent ten days confined in a hospital. Shortly after
her release from the hospital, Gjerazi resigned from his
position as a secretary of the Democratic Party and moved
his family to Vos Kopoje, a town located in a remote
mountainous area in Southern Albania. Although Gjerazi
continued to live in Fier, he traveled to Vos Kopeje regu-
larly, keeping a “low profile” while deciding what to do with
his family’s store, land, and personal belongings.
Gjerazi’s problems flared up again in April of 1998, when
he attended a monthly Democratic Party meeting. After
returning from the meeting, Gjerazi’s apartment was set on
fire while he was in the building. Although he escaped, his
unit was completely destroyed. After the fire, Gjerazi moved
to Vos Kopoje with his family. In September of 1998, he
returned to Fier to attend a peaceful demonstration in
protest of the assassination of Azem Hajdari, a Democratic
Party official. Shortly after the demonstration, a warrant
was issued for Gjerazi’s arrest, alleging that he had at-
tacked the main offices of the police station. Although he
received notice of the arrest summons, instead of reporting
to the police, he began making arrangements to leave
Albania.
Upon payment of $15,000, Gjerazi arranged for Slovenian
passports and transportation, and, on March 23, 1999, he
6 No. 04-2344
and his family fled Albania. After a stop in Italy,5 they flew
to the United States. Gjerazi testified that when he and his
family arrived in the United States, he destroyed their
Slovenian passports as directed by the individuals who
provided the passports. In November, the Gjerazis filed for
asylum.
According to Gjerazi, when he left Albania, he did not
know that he would eventually land in the United States
and apply for asylum. During the hearing, he explained
that he feared returning to Albania with his family because
the Socialist Party was still in power. He testified that his
family’s persecution in Albania was motivated by his
membership in the Democratic Party and that he believed
current conditions in Albania to be the same as they were
in 1997. He stated that if he and his family were forced to
return, he was concerned that there could be “very severe
consequences” for them, and he speculated that he would be
arrested or even killed.
During the asylum hearing, Gjerazi’s wife and daughter
also testified about their tumultuous lives in Albania
and Gjerazi’s involvement with the Democratic Party.
Gjerazi’s wife testified about the beatings she and her
husband endured as well as her son’s abduction. She
corroborated her husband’s testimony about his active
participation in the Democratic Party and stated that she
feared for their lives should they be forced to return to
Albania. The IJ also requested that Gjerazi’s ten-year-old
daughter, Alba, testify. Although she recalled her brother’s
kidnaping, not surprisingly, she was unable to add much to
the record, including anything about her father’s political
5
Gjerazi testified that he did not want to remain in Italy because
“there are so many Albanians and there are many incidents that
happen there and people get killed . . . . ”
No. 04-2344 7
activities.6
In addition to the testimony presented by the Gjerazi
family, Dhimo Jano, a citizen of Albania who left the
country in October of 1997, testified on their behalf. Jano
knew and socialized with the Gjerazi family in Albania.
Jano confirmed Gjerazi’s membership in the Democratic
Party and his position as a secretary within the party.
He also described an incident that occurred in Albania in
1997 when he and Gjerazi were having coffee. He stated
that he observed a member of the Socialist Party approach
Gjerazi, point at him, and proclaim, “[T]his is the end of the
Democratic Party.” Jano also testified that, during the same
year, he heard on the local news that Gjerazi’s son had been
abducted.
B. Documents
Gjerazi recounted that when he left Albania in haste, he
did not take the time to gather documents to support an
asylum application because he had not yet determined what
his destination would be or much less that he
would eventually apply for asylum in the United States.
When he did decide to apply for asylum, he asked his
father-in-law, who was still in Albania, to obtain the
necessary documentation to assist him in establishing his
past membership in the Democratic Party and to prove his
family’s persecution in Albania.
Gjerazi submitted numerous documents to the IJ in
support of his family’s asylum applications. The IJ admitted
in evidence documents marked as (1) group exhibit 1
6
We find it surprising that the IJ asked Alba to testify. To expect
a ten-year-old child to testify about political activities which her
father was involved in when she was only seven or eight years of
age seems rather remarkable.
8 No. 04-2344
(notices to all members of the Gjerazi family to appear),
(2) group exhibit 2 (Gjerazi’s asylum application and
additional documents received from the INS pertaining to
his application), (3) group exhibit 4 (documents which
corroborated background information and country condi-
tions in Albania), and (4) exhibit 5 (the 1999 Country Report
on Human Right’s Practices for Albania, issued by the
United States Department of State on February 25, 2000).7
The IJ excluded from evidence a collection of documents
labeled as group exhibit 3, A through K.8 Exhibit 3-A is a
copy of an arrest warrant for Gjerazi executed on Septem-
ber 15, 1998, following the demonstration protesting the
assassination of Azem Hajdari. Exhibit 3-B is the notarized
declaration of Luljeta Gjini, a neighbor of Gjerazi’s in
Albania, who attested to the beating of Gjerazi’s wife. The
declaration was executed on July 29, 1998. Exhibit 3-C is a
medical certificate confirming Klarita’s hospitalization after
the attack in her home. The certificate states that Klarita
was examined on July 2, 1997. Exhibits 3-D through F are
certificates from the Commissariat of Police. Exhibit 3-D,
dated June 8, 1997, confirms the kidnaping of Justin
Gjerazi; exhibit 3-E, dated September 1, 1998, states that
the Gjerazi home in Fier was destroyed by fire; and 3-F,
dated August 3, 1998, states that Gjerazi was attacked
on his way to Tirana in April of 1997.9 Exhibit 3-G, dated
7
The 1999 Country Report confirmed that the Democratic Party
was the largest opposition party in Albania during the rele-
vant time period. The report also states that while the govern-
ment of Albania did not confirm any extrajudicial killings in 1999,
the Democratic Party claimed that its members were harrassed
and beaten by members of the ruling party.
8
The documents were marked as group exhibit 3 for identifica-
tion purposes only.
9
Gjerazi testified that he did not think the attack in April of 1997
(continued...)
No. 04-2344 9
July 26, 1999, states that the Gjerazi family was persecuted
by the communist regime in Albania. Exhibits 3-H and 3-I
were purportedly issued by the Democratic Party.10 These
documents corroborate Gjerazi’s testimony about
his membership in the party, his election as a secretary
in 1993, and the incidents of persecution suffered by his
family. The final two documents, exhibits 3-J and 3-K, are
copies of Gjerazi’s Albanian passport and his Democratic
Party membership card, respectively.
During Gjerazi’s cross-examination, the government
brought up discrepancies between the dates reflected on the
documents and the dates of the incidents of persecution
alleged by Gjerazi. A number of the documents were dated
several months after the incidents occurred. When asked
about the discrepancies in the dates, Gjerazi speculated
that employees of the Commissariat of Police or notaries
may have made a mistake while preparing the documents.
However, he repeatedly explained to the IJ that he was
unable to shed any light on the discrepancies in the dates,
making clear that he was not the one who procured the
documents from the police in Albania; consequently, he was
not physically present to inspect the documents at the time
they were either drafted or obtained. Furthermore, because
questions about the documents did not arise until the time
of the hearing, Gjerazi was unable to present an affidavit
9
(...continued)
was politically motivated and that he did not intend to submit this
document. The attack on June 5, 1997, also on the way to Tirana,
was a separate incident for which he did not submit corroborating
documentary evidence.
10
The IJ’s opinion highlights the fact that these letters were
not written on official Democratic Party letterhead, a detail
that the government focused on during cross-examination. Gjerazi
testified that he had no explanation for why these documents were
not composed on official letterhead.
10 No. 04-2344
from his father-in-law to explain the manner in which the
documents were obtained and possibly to answer questions
concerning the alleged discrepancies in the dates.
C. The Decision of the Immigration Judge
On June 13, 2000, the IJ denied Gjerazi’s application for
asylum, withholding of removal, and protection under the
Convention Against Torture. In his oral decision, the IJ
concluded that “certain aspects of [Gjerazi’s] claim appear
to be supported by the Country Reports . . . .” and “certain
aspects of [Gjerazi’s] claim to persecution based on country
conditions as they relate to political conflict between
Socialists and Democrats are not . . . implausible.” The IJ
also found that “[Gjerazi] and his family have testified
consistently with their written applications for Asylum.”
Despite these findings, the IJ concluded that the documents
submitted in support of their asylum application, specifi-
cally group exhibit 3, “raised serious credibility issues.”
Focusing on the credibility issues raised by the documents,
the IJ determined that Gjerazi “failed to meet his burden of
proof.”
The IJ stated that the manner in which the documents
were obtained and submitted led him to the “inescapable
conclusion that this claim must be denied” and that the use
of false passports to enter the U.S. “triggered a series of
questions about the other documents.” He also questioned
Gjerazi’s decision to dispose of the Slovenian passports
upon entry into the U.S., wondering why Gjerazi did not
hand them over to the man who met them at the airport.
The IJ found that this act “raised other questions about the
respondent’s credibility because the record shows that he
had submitted copies of an Albanian passport for reasons
No. 04-2344 11
unknown.”11 The IJ also took issue with Gjerazi’s testimony
that the documents in group exhibit 3 were prepared on the
dates of the incidents or shortly thereafter. The IJ reasoned,
“If the documents were actually prepared on the dates
which appear on their face this would raise significant
questions about why [Gjerazi] would have his father-in-law
obtain those documents when he himself was in Albania.”
Furthermore, the IJ questioned Gjerazi’s testimony that the
documents were photocopies of the original documents and
concluded that the documents were not photocopies but
were originals.
After excluding much of Gjerazi’s corroborating documen-
tary evidence, the IJ concluded that the record failed to
establish the motivation of the persecutors. He described
the Gjerazi family as “fortunate,” “middle class” landowners
who earned $3,000 per month running the family store, and
stated that “[w]hat this Court is willing to accept given all
of the questions raised by [Gjerazi’s] testimony is that
[Gjerazi] and his family had money which was targeted by
criminals in Albania.” In spite of the overwhelming evi-
dence of political motive surrounding the attacks on the
Gjerazi family, including several threatening statements
made to the Gjerazis and recounted herein, the IJ specu-
lated that the kidnaping of Gjerazi’s son and the beating of
his wife were motivated by financial gain and were not
instigated by the Socialist Party.
11
Gjerazi’s counsel points out that Gjerazi submitted a copy of his
Albanian passport to the immigration court for identification
purposes.
12 No. 04-2344
D. The BIA’s Opinion
On July 13, 2000, Gjerazi filed an appeal with the BIA.
On March 31, 2004, the BIA issued its decision adopting
and affirming the IJ’s decision. In addition to adopting
the IJ’s decision, the BIA also supplemented the decision
and addressed Gjerazi’s contention that he was denied a full
and fair hearing because of an incompetent translator.12
The BIA found that Gjerazi caused the trans-
lator’s difficulties when he failed to alter the rapidity of
his speech in order to give the translator time to inter-
pret his testimony. The BIA summarily concluded that
Gjerazi failed to demonstrate “that a better translation
would have made a difference in the outcome of the hear-
ing.”
On May 25, 2004, Gjerazi filed a timely petition for
appellate review. Gjerazi alleges that he and his family
have suffered past persecution as a direct result of his
political activities. Gjerazi makes three arguments in
support of his petition. Initially, he argues that the IJ
incorrectly concluded that the physical and mental torture
endured by the Gjerazis was criminally rather than politi-
12
Throughout the asylum hearing, the immigration court’s
translator had difficulty interpreting Gjerazi’s testimony. On
one occasion, the IJ asked the translator, “You’re having a hard
time, Ms. Interpreter, aren’t you? Well, here we go. Let’s try
it again.” On another occasion, the IJ thought the translator
had failed to properly translate the questions he was asking
Gjerazi. The IJ asked her, “Did you interpret that . . . . Did you
ask?” The IJ then stated, “Did you—did you interpret? I didn’t
hear the interpretation . . . .” The transcript also reveals several
instances where the translator requested that certain ques-
tions and answers be repeated. After Gjerazi completed his
testimony, this translator was replaced by a second translator
who was able to translate the testimony of Gjerazi’s wife and
daughter without incident.
No. 04-2344 13
cally motivated. Gjerazi contends that his family was
persecuted, at least in part, because of his political activi-
ties and membership in the Democratic Party. Next, Gjerazi
argues that the IJ should have granted his family’s request
for asylum because they provided credible, convincing
testimony about each incident of political retribution they
suffered. Finally, Gjerazi argues that the IJ was on notice
of the incompetence of the translator yet he still put undue
weight on insignificant details in Gjerazi’s testimony that
might have been mistranslated. Based upon the record
before us, we agree that Gjerazi’s first two arguments alone
are sufficient to compel a remand and we need not reach his
third argument regarding the alleged incompetence of the
translator.
II. Analysis
A. Standard of Review
When the BIA adopts the IJ’s decision while supple-
menting the decision with its own reasoning, the IJ’s
decision, as supplemented by the BIA’s decision, becomes
the basis for review. Niam v. Ashcroft, 354 F.3d 652, 655-56
(7th Cir. 2004). Our review of the BIA’s denial of asylum is
deferential; we require only that the decision be “supported
by reasonable, substantial, and probative evidence on the
record considered as a whole.” Li v. Gonzales, 416 F.3d 681,
684 (7th Cir. 2005) (quoting INS v. Elias-Zacarias, 502 U.S.
478, 481 (1992)). We will reverse only if the evidence
presented is “such that a reasonable factfinder would have
to conclude that the requisite fear of persecution existed.”
Elias-Zacarias, 502 U.S. at 481; see also 8 U.S.C.
§ 1252(b)(4)(B) (stating that “the administrative findings
of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary”).
Furthermore, “[c]redibility determinations are accorded
substantial deference” and “should only be overturned
14 No. 04-2344
under extraordinary circumstances.” Ahmad v. INS, 163
F.3d 457, 461 (7th Cir. 1999). However, they must be
supported by “specific, cogent reasons.” Mansour v. INS,
230 F.3d 902, 906 (7th Cir. 2000) (quoting Ahmad, 163 F.3d
at 461). In addition, these reasons must “bear a legitimate
nexus to the finding.” Id. “We shall not defer to credibility
determinations ‘drawn from insufficient or incomplete
evidence,’ nor shall we uphold ‘[a]dverse credibility determi-
nations based on speculation or conjecture, rather than on
evidence in the record.’ ” Korniejew v. Ashcroft, 371 F.3d
377, 383 (7th Cir. 2004) (internal citations omitted).
B. Asylum
To be eligible for asylum, Gjerazi must demonstrate
that he was a “refugee” under 8 U.S.C. § 1101(a)(42)(A). See
8 U.S.C. § 1158(b)(1)(A). The definition of refugee includes
a person “unable or unwilling to return to [his home
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.” 8 U.S.C. § 1101(a)(42)(A); Elias-Zacarias, 502 U.S. at
481. The statute does not define the term “persecution,” but
we have held in the past that it may include “detention,
arrest, interrogation, prosecution, imprisonment, illegal
searches, confiscation of property, surveillance, beatings, [
] torture, behavior that threatens the same, and non-life-
threatening behavior such as torture and economic depriva-
tion if the resulting conditions are sufficiently severe.”
Capric v. Ashcroft, 355 F.3d 1075, 1084 (7th Cir. 2004)
(internal citations omitted).
There are two avenues available to an alien seeking
asylum. See, e.g., 8 C.F.R. § 208.13. Under 8 C.F.R.
§ 208.13(b)(1), an applicant who successfully proves past
persecution is presumed to have a well-founded fear of
future persecution—a presumption that the government
No. 04-2344 15
can rebut by demonstrating a change in the conditions in
the applicant’s homeland. Ambati v. Reno, 233 F.3d 1054,
1060 (7th Cir. 2000); see also Diallo v. Ashcroft, 381 F.3d
687, 697 (7th Cir. 2004). Alternatively, under 8 C.F.R.
§ 208.13(b)(2), an applicant can affirmatively demonstrate a
well-founded fear of future persecution if his fear is subjec-
tively genuine and objectively reasonable in light of credible
evidence. Sayaxing v. INS, 179 F.3d 515, 519-20 (7th Cir.
1999) (quoting Tzankov v. INS, 107 F.3d 516, 519 (7th Cir.
1997)). While the subjective fear component turns largely
upon the applicant’s own testimony and credibility, id. at
520, “[t]he objective component requirement can be met
‘either through the production of specific documentary
evidence or by credible and persuasive testimony.’ ” Jamal-
Daoud v. Gonzales, 403 F.3d 918, 922 (7th Cir. 2005)
(quoting Balogun v. Ashcroft, 374 F.3d 492, 499 (7th Cir.
2004)). The applicant is not required to establish certain
persecution should he return or even demonstrate that
persecution is highly probable; rather, the applicant need
only demonstrate that persecution is a “reasonable possibil-
ity.” See Cardoza-Fonseca, 480 U.S. at 430-432, 440 (“well-
founded fear” of persecution is an objectively reasonable
awareness of danger; the probability of persecution need not
rise to the level of proof of “more likely than not.”) (“One
can certainly have a well-founded fear of an event happen-
ing when there is less than a 50% chance of the occurrence
taking place.”); see also Ahmad, 163 F.3d at 461.
“Proof of past persecution or a fear of future persecution
is established, in part, by the information contained in the
asylum application, including the alien’s detailed state-
ments about his mistreatment and other evidence, if
available (i.e., birth certificates, passports, news articles,
photos, hospital records, witnesses’ affidavits).” Capric, 355
F.3d at 1085. However, in the majority of cases, the appli-
cant supports his application by testifying before the IJ
about the hardships he endured in his homeland. Given the
16 No. 04-2344
difficulty in directly authenticating or verifying an appli-
cant’s testimony, an IJ is called upon to make a reasoned
and thorough credibility determination. “A credibility
analysis assesses the applicant’s claim only for internal
consistency, detail, and plausibility, typically demonstrated
by background evidence concerning general country condi-
tions, if available . . . . If determined to be credible, the
testimony of an alien alone may be sufficient to sustain the
burden of proof without corroboration.” Id. (internal
citations omitted)
1. Credibility Determination
The general rule in immigration cases is that an asy-
lum applicant whose testimony is otherwise credible need
not produce corroborating evidence to support each and
every element of his claim. Lin v. Ashcroft, 385 F.3d 748,
756 (7th Cir. 2004). This maxim is especially true when, as
here, the asylum claim hinges almost exclusively on specific
incidents “personally involving” the applicant and his
family. Bace v. Ashcroft, 352 F.3d 1133, 1141 (7th Cir.
2003). As we noted in Korniejew v. Ashcroft, immigration
judges should not “insist on corroborating evidence when
common sense and institutional experience suggest that
there is none to be had.” 371 F.3d at 387.
In his decision, the IJ agreed that Gjerazi’s account of his
alleged political persecution was plausible and supported by
independent state department reports. He also stated that
“[Gjerazi] and his family have testified consistently with
their written applications for Asylum.” However, he deter-
mined that the documents submitted by Gjerazi raised
serious concerns about Gjerazi’s credibility. In excluding a
number of Gjerazi’s corroborating documents, the IJ
reasoned that the documents were unreliable because the
dates on the documents indicated that they were prepared
before the Gjerazi family fled from Albania. The IJ found it
No. 04-2344 17
significant that Gjerazi failed to bring the documentation
with him when fleeing Albania, opting instead to have his
father-in-law send the documents after the family arrived
in the U.S.
Contrary to the IJ’s reasoning, which is most troubling, it
seems illogical to require a family fleeing a country to take
precious time to search for and collect documents in order
to corroborate an asylum claim. Our primary concern is that
the IJ failed to acknowledge that Gjerazi was not anticipat-
ing the need for those documents when or after he fled
Albania. See, e.g., Grupee v. Gonzales, 400 F.3d 1026, 1027
(7th Cir. 2005) (commenting that it would be difficult to
“anticipate the need” for corroborating documentation while
attempting to flee). As we pointed out earlier, Gjerazi made
clear when he testified that he did not flee Albania intend-
ing to seek asylum in the U.S. As he explained in his
asylum hearing, it was not until he and his family arrived
in the U.S. that they decided to apply for asylum: “[W]hen
I first got in United States [ ] my initial intention was not
to stay here. I just wanted to leave the country, but I didn’t
know what I was going to do and then later on I realized
that I had to apply for the political asylum and there were
certain requirements that I had to meet and membership
documents and certification so I asked my father-in-law to
get the certification.” It would not have made sense for the
Gjerazis to wait to obtain documentation to corroborate
an asylum claim when, at the time of their departure,
they had no intention of seeking asylum. Furthermore,
the IJ failed to recognize that Gjerazi left Albania in secrecy
and fear, while a warrant for his arrest was outstanding,
making it ill-advised for him to request documents from the
police. The IJ did not consider that a request for this type
of documentation might have raised a red flag with the
Albanian authorities, jeopardizing his family’s clandestine
departure.
18 No. 04-2344
The IJ also excluded a number of Gjerazi’s documents
because Gjerazi testified that he believed certain documents
to be copies while the IJ determined that they were origi-
nals. In Kourski v. Ashcroft, 355 F.3d 1038 (7th Cir. 2004),
we addressed a similar situation. The petitioner in Kourski
claimed that he had been persecuted in Russia by anti-
Semites. During his asylum hearing, the only evidence
Kourski presented of his Jewish heritage was his own
testimony and a copy of a birth certificate. After the INS
concluded that the birth certificate was counterfeit, Kourski
explained that his mother had sent him the document and
that he was neither aware nor had any reason to suspect
that it was a forgery. Based on his conclusion about
Kourski’s birth certificate, the IJ concluded that Kourski
was not credible and denied his asylum application. We
vacated the removal order, reasoning that the IJ could have
believed Kourski’s testimony in the absence of any corrobo-
ration because “ ‘the testimony of the applicant [for asylum],
if credible, may be sufficient to sustain the burden of proof
without corroboration.’ ” Id. at 1039 (quoting 8 C.F.R. §
208.13(a)) (alteration in original). We found the IJ’s conclu-
sion to be “unsupportable because the immigration judge
did not find that Kourski knew or suspected that the birth
certificate was a forgery,” and there was no evidence that he
or his mother knew it was not authentic. Id. We con-
cluded that “if the applicant has no reason to know that the
document is forged, its existence does not undermine his
credibility, though it deprives his testimony of the extra
boost to credibility that it would have if it were corrobo-
rated.” Id. at 1040.
In the present case, the IJ concluded that the docu-
ments were not “trustworthy” because Gjerazi testified that
the documents were copies while the IJ determined, without
the benefit of any expert testimony, that the documents
were originals. The IJ’s decision to forgo the assistance of
an expert in a situation such as this is perplexing. The
No. 04-2344 19
record reveals that Gjerazi’s counsel requested that the
documents be examined by the Forensic Document Labora-
tory for authenticity. However, without so much as provid-
ing a reason, the IJ refused, and, in doing so, he deprived
Gjerazi, as well as the court on appeal, of a definitive
determination as to the authenticity of the documents.
Given that the IJ relied heavily on his analysis of the
documents in questioning Gjerazi’s credibility, in fairness
he should have enlisted a qualified expert to assist him in
determining whether the documents were copies or origi-
nals, particularly since the IJ did not question Gjerazi’s
credibility except in connection with the documents.
Furthermore, even assuming that the IJ was right and
that the documents were originals, there is no evidence that
Gjerazi knew or should have known that the corroborating
documents were fraudulent. Like Kourski, Gjerazi testified
that someone other than himself, in this case his father-in-
law, obtained the documents. In all probability, Gjerazi
never thought to have the documents examined for authen-
ticity because he had no reason to suspect they were forged.
Since no testimony or evidence was presented to demon-
strate that Gjerazi was aware of, or much less responsible
for, any authenticity problems, any confusion about whether
the documents were copies or originals should not serve to
undermine his credibility.
Gjerazi and his family presented testimony that was
specific, detailed, consistent, and unambiguous, not “vague”
or “lacking in internal consistency and plausibility.” Malek
v. INS, 198 F.3d 1016, 1020 (7th Cir. 2000) (written applica-
tion and testimony provided by asylum applicant was
markedly different from the information offered by appli-
cant’s wife) (internal quotations omitted). Gjerazi’s testi-
mony alone might very well have established eligibility for
asylum, yet he, unlike the petitioner in Kourski, presented
additional evidence in further support of his claim. Here,
20 No. 04-2344
the testimony of Gjerazi’s wife was entirely consistent with
Gjerazi’s testimony. Furthermore, Dhimo Jano, Gjerazi’s
acquaintance from Albania, testified that Gjerazi was a
member of the Democratic Party, had served as a secretary
for the party, and had been threatened in 1997 by a mem-
ber of the Socialist Party in Jano’s presence. Jano also
corroborated the testimony of Gjerazi, his wife, and his
daughter that Gjerazi’s son had been abducted.
Based on the credible and significant testimonial evidence
presented by Gjerazi, we conclude that a “pressing” need for
corroborating documentary evidence did not exist in this
case, Bace, 352 F.3d at 1141, and that the IJ erred in
discounting Gjerazi’s otherwise credible testimony because
he was skeptical of the corroborating documents, cf. Dong
v. Gonzales, 421 F.3d 573, 577 (7th Cir. 2005) (“The IJ’s
skepticism alone, in light of [the applicant’s] consistent
testimony, does not support a negative credibility determina-
tion.”); Lin, 385 F.3d at 755 (finding that unsupported
skepticism is an insufficient basis for adverse credibility
finding); Georgis v. Ashcroft, 328 F.3d 962, 969 (7th Cir.
2003) (finding that IJ cannot base an adverse credibility
finding on an applicant’s failure to produce corroborating
evidence when the IJ himself was responsible for creating
the problem by erroneously excluding the evidence produced
by the applicant).13
13
In its brief, the government mentions a number of additional
reasons to uphold the IJ’s decision to exclude the evidence or
otherwise find Gjerazi not credible; however, these reasons were
not relied on by the IJ in reaching his decision. Thus, under the
Chenery doctrine, we cannot uphold the IJ’s decision based
on these grounds. See Comollari v. Ashcroft, 378 F.3d 694, 696
(7th Cir. 2004).
No. 04-2344 21
2. Past Persecution
Although the IJ stated that the corroborating docu-
ments submitted by the Gjerazi family raised “serious
concerns,” he did not specifically find that these concerns
led him to deny their application for asylum. Perhaps
because he realized that he could not deny Gjerazi’s applica-
tion based on documents that were not admitted into
evidence, the IJ shifted his focus to Gjerazi’s past persecu-
tion claim and concluded that the Gjerazis’ persecution was
not politically motivated. We conclude that such a finding,
which is confusing and ignores significant portions of the
evidence, is not supported in the record.
The Gjerazis present a most compelling case of past
persecution. In fact, the record reveals at least five serious
incidents in which the Gjerazi family appears to have
been the target of political militants while Gjerazi was
actively participating in the activities of the Democratic
Party. On June 5, 1997, masked assailants beat Gjerazi
until he lost consciousness while en route to a party
meeting, telling him that he would not be going “to meet the
celebration in Tirana.” Later that same day, unidentified
callers threatened him with “very bad consequences” if he
did not adjust the election returns in order to ensure the
success of the Socialist Party. On June 8, 1997, just three
days after Gjerazi’s beating, his two-year-old son was
kidnaped, and the abductors called the Gjerazis and
initially conditioned the child’s release on the Socialist
Party winning the vote in Fier. It was only after Gjerazi’s
father informed the kidnapers that Gjerazi was not in a
position to guarantee this result that the kidnapers, as
a second option, agreed to release the child for a ransom
of $5,000. Then, on July 2, 1997, one month after his
son’s abduction, intruders broke into Gjerazi’s apartment,
searching and calling out for Gjerazi. When they could not
locate him in the apartment, they beat Gjerazi’s wife
into a state of unconsciousness, hospitalizing her for ten
22 No. 04-2344
days. In April of 1998, on a night when Gjerazi attended a
Democratic Party monthly meeting, Gjerazi’s apartment
was set on fire while he was in the building. Although he
escaped, his home was completely destroyed. The final
incident occurred in September of 1998, when Gjerazi
returned to Fier to attend a peaceful demonstration in
protest of the assassination of Azem Hajdari, a Demo-
cratic Party official. Shortly after the demonstration, the
Albanian authorities, controlled by the Socialist Party,
issued a warrant for his arrest. With the exception of
these final two incidents, the remainder of the incidents
occurred in the months surrounding Albania’s 1997 national
elections and were accompanied by statements, seemingly
made by followers of the Socialist party, which indicated
that the attacks were politically motivated.
In the face of ample, consistent, seemingly credible
testimony about these incidents from Gjerazi, his wife
and daughter, plus a family friend, the IJ rejected a finding
that the Gjerazis’ persecution was politically motivated.14
Rather, he focused almost exclusively on the incidents that
he concluded were the product of general criminal lawless-
ness in Albania. Despite abundant evidence in the record,
his analysis ignored the beating sustained by Gjerazi, the
fire that destroyed his home, the undeserving warrant
issued for his arrest, and, most misleading, the timing of
the events and the political statements accompanying these
instances of persecution. Instead, he engaged in arrant
speculation when he concluded that both the abduction of
14
In addition to refusing to find that the Gjerazis’ persecution was
politically motivated, the IJ also failed to make a specific finding
as to whether the alleged mistreatment suffered by the Gjerazis
was sufficiently severe to qualify as persecution, despite the
beatings of Gjerazi and his wife, the kidnaping of his child, and
the destruction of his home.
No. 04-2344 23
Gjerazi’s son and the beating of his wife were motivated
solely by financial gain.15
Even if we were to agree with the IJ that the kidnaping
and home invasion were motivated in part by economic
remuneration, of which we are not convinced, that theory
does not exclude the possibility of a “mixed motive” situa-
tion. See Mohamed v. Ashcroft, 396 F.3d 999, 1004 (8th Cir.
2005). “A persecutor may have multiple motivations for his
or her conduct . . . .” Lukwago v. Ashcroft, 329 F.3d 157, 170
(3d Cir. 2003). While an alien is required to provide some
evidence of motive, direct or circumstantial, Elias-Zacarias,
502 U.S. at 483, he or she must only demonstrate that the
persecutor was motivated, “at least in part, by one of the
enumerated grounds.” Lukwago, 329 F.3d at 170. This
circuit recently joined several other circuits and formally
adopted the doctrine of mixed motives, “which recognizes
that an individual may qualify for asylum if his or her
persecutors have more than one motive as long as one of the
motives is specified in the Immigration and Nationality Act
(“INA”).” Mohideen v. Gonzales, 416 F.3d 567, 570 (7th Cir.
2005); De Brenner v. Ashcroft, 388 F.3d 629, 636 (8th Cir.
2004); Lopez-Soto v. Ashcroft, 383 F.3d 228, 236 (4th Cir.
2004); Girma v. INS, 283 F.3d 664, 667 (5th Cir. 2002);
Borja v. INS, 175 F.3d 732, 735-36 (9th Cir. 1999); Chang
v. INS, 119 F.3d 1055, 1065 (3d Cir. 1997).
In his decision, the IJ fleetingly referred to the doctrine of
mixed motives but failed to thoroughly discuss and evaluate
the evidence of dual motive that Gjerazi presented. In
concluding that the evidence demonstrated that the family
was “targeted by criminals” and not political persecutors,
the IJ focused exclusively on Justin’s kidnaping and
15
Unless it is severe, economic persecution alone is generally
insufficient to entitle an applicant to asylum. See Ghebremedhin
v. Ashcroft, 385 F.3d 1116, 1119 (7th Cir. 2004).
24 No. 04-2344
Klarita’s assault, both of which exhibited a secondary
economic component. In discussing the kidnaping and the
assault on Gjerazi’s wife, the IJ dismissed testimony that
the assailants made contemporaneous statements indicat-
ing that the attacks were politically motivated and disre-
garded the timing of the attacks. He also failed to acknowl-
edge that the kidnapers initial request was for Gjerazi to fix
the 1997 elections, not for a ransom. Even more glaring, he
ignored the other incidents of persecution that befell the
Gjerazi family. In our opinion, these other incidents
(Gjerazi’s severe beating en route to a Democratic Party
meeting, the arson following a party meeting, and the
arrest warrant issued after Gjerazi’s attendance at a
political protest), exuded political motivation and absolutely
no economic motivation, yet the IJ failed to discuss the
readily evident political motive for these attacks and, in
doing so, ignored key evidence.
We have previously held that an applicant is entitled
reasoned analysis, not one which wholly ignores or disre-
gards relevant, probative evidence. See Mohideen, 416 F.3d
at 571; Tolosa v. Ashcroft, 384 F.3d 906, 909-10 (7th Cir.
2004) (discussing IJ’s failure to consider key evidence); Lian
v. Ashcroft, 379 F.3d 457, 461-62 (7th Cir. 2004) (highlight-
ing all relevant evidence ignored by the IJ). In conclud-
ing that the attacks on the Gjerazi family were not politi-
cally motivated, the IJ erred in ignoring those incidents
which exhibited no economic motivation and by disre-
garding the evidence of political motivation in the incidents
he considered. Like all asylum applicants, Gjerazi is
entitled to a well-reasoned, documented, and complete
analysis that engages the evidence he presented, particu-
larly the ample evidence demonstrating a political motiva-
tion for his persecution. Mohideen, 416 F.3d at 571. The IJ’s
decision falls far short of this standard, and we hold that
his conclusions are not supported by substantial evidence in
the record.
No. 04-2344 25
III. Conclusion
We GRANT the petition for review, VACATE the BIA’s
order, and REMAND for further proceedings consistent
with this opinion. We suggest that the BIA consider re-
assigning this matter to another judge on remand. See
Circuit Rule 36 of the United States Court of Appeals for
the Seventh Circuit; see also Kerciku v. INS, 314 F.3d 913,
919 (7th Cir. 2003).
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-30-06