Daniiar Santashbekovich SANTASHBEKOV, Petitioner, v. Loretta E. LYNCH, Attorney General of the United States, Respondent.
No. 15-2359
United States Court of Appeals, Seventh Circuit.
Argued April 6, 2016. Decided August 24, 2016.
836 F.3d 836
Before FLAUM, RIPPLE, and HAMILTON, Circuit Judges.
and alien registration cards so that others could find employment.” Id. at 708. The Board of Immigration Appeals deemed his crime one of moral turpitude and a panel of this court affirmed. It was a more serious crime than our petitioner‘s, because Lagunas-Salgado had sold false papers to about 50 people, some for as much as $100; and he was sentenced to five months in prison and two years of probation, a much heavier sentence than Arias received. The panel opinion in Lagunas-Salgado remarks with apparent approval the BIA‘s conclusion “that petty larceny and issuing a worthless check involve moral turpitude” but that “crimes such as importing, selling, or possessing drugs do not involve moral turpitude because evil intent is not an element of the offense.” Id. at 710. That is an absurd distinction, given that the congressional mandate is to identify crimes thаt are morally reprehensible and thus a proper ground for deportation.
Yet the approach I‘m suggesting derives support from Lagunas-Salgado. The panel was emphatic that it was a fraud case, 584 F.3d at 711-12, and I read Jordan v. De George to hold that crimes of fraud are ipso facto crimes of moral turpitude. Lagunas-Salgado gave away some of his false documents but sold others, and was “deceiving the government” because “he knew the persons receiving the false documents would use them in an attempt to obtain work that they could not otherwise lawfully obtain.” Id. at 712. The petitioner in our case did not forge documents, let alone for gift or sale to other persons. The impact of her conduct on her “victim,” the U.S. Government, was negligible, as reflected in the nominal sentence that she received relative to the heavier (though still light) sentence impоsed on Lagunas-Salgado.
Marin-Rodriguez is closer to our case, but the alien in that case had been convicted under a different statute,
If anything is clear it‘s that “crime of moral turpitude” shouldn‘t be defined by invoking broad categorical rules that sweep in harmless conduct. Yet that‘s what the Board of Immigration Appeals did in this case, in upholding the immigration judge‘s conclusion that the petitioner had committed a сrime of moral turpitude; it said that a violation of
Jennifer L. Bennett, Attorney, Law Office of Jennifer L. Bennett, Chicago, IL, Richard Harvey Trais, Attorney, Richard H. Trais Attorney at Law, Chicago, IL, for Petitioner.
Joseph A. O‘Connell, OIL, Attorneys, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.
HAMILTON, Circuit Judge.
Daniiar
I. Factual and Procedural Background
In early 2013, Daniiar Santashbekov filed an application for asylum claiming that he faced persecution for his political activism as a member of the youth wing of the Ata Meken party in his native Kyrgyzstan. His asylum application was denied, and he was served with a Notice to Appear for removal proceedings on April 24, 2013. Santashbekov admitted his removability but renewed his application for asylum.
The Attorney General or Secretary of Homeland Security may grant asylum to an immigrant who has “a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion” in his home country.
Santashbekov‘s application stems from political unrest in Kyrgyzstan. In April 2010, opposition parties protested and ousted the then-president. Ata Meken was one of the opposition parties, and it became part of a new coalition government. After the 2010 revolution, according to the U.S. State Department, Kyrgyzstan continued to face instability and human rights problems, including arbitrary arrests and torture by law enforcement and security forces.
The immigration judge characterized Santashbekov‘s testimony about his own situation as “vague” and “extremely confusing.” In essence, Santashbekov tеstified that he had joined the youth wing of the Ata Meken party at his university in Bishkek in October 2010. After he gave a political speech at his university in December 2010, he began experiencing persecution by a man named Kurmanov, who Santashbekov believes is a member of an opposing political party and а police or government official. Santashbekov testified that Kurmanov and his associates asked him to repudiate the Ata Meken party and detained and beat him several times in 2011. He testified that after the beatings, he was afraid to leave his home and changed his address in Bishkek. Santashbekov also changed his name, which was formerly Sultanhodzhaev. Santashbekov testified that his supervisor at the Ata Meken party, Zhoomart Saparbaev, recommended that he flee the country and helped him.
Santashbekov also submitted documentary evidence to the immigration judge. He submitted hospital paperwork that сonfirms that he received medical treatment in Kyrgyzstan corresponding to the beatings he described. He submitted criminal court documents showing that Kurmanov was prosecuted and that Santashbekov was named as a “plaintiff” in the proceeding. And Santashbekov submitted a docu-ment
The immigration judge did not believe Santashbekov‘s testimony. He made an adverse credibility determination based on the vague and sometimes contradictory nature of Santashbekov‘s testimony. The judge also found that Santashbekov‘s documentary evidence was insufficient to support his claims of political activity or persecution. The judge concluded that Santashbekov did not carry his burden of proof and denied the application for asylum. The Board affirmed the immigration judge‘s denial, also noting inconsistencies in Santashbekov‘s testimony.1
II. Analysis
Where the Board affirms the immigration judge‘s decision and adds its own analysis, as it did here, we review the immigration judge‘s decision and the Board‘s additional reasoning. Darinchuluun v. Lynch, 804 F.3d 1208, 1214 (7th Cir. 2015). Our review is deferential. We review administrative findings of fact, including credibility determinations, for substantial evidence. Tawuo v. Lynch, 799 F.3d 725, 727 (7th Cir. 2015). Under that standard, we must uphold factual determinations “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Balogun v. Ashcroft, 374 F.3d 492, 498 (7th Cir. 2004). We may not reverse an administrative finding of fact “unless any reasonable adjudicator would be compelled to conclude to the contrary.”
Here, substantial evidence supports the Board‘s and the immigration judge‘s finding that Santashbekov‘s testimony was not credible. The Board and the judge noted that Santashbekov testifiеd vaguely about Kurmanov‘s identity. He could not identify the political party to which Kurmanov belonged or the part of the government in which he worked. Similarly, as the Board and the judge noted, despite being prompted by the immigration judge, Santashbekov did not explain why Kurmanov would travel the 400 kilometers from Bishkek to Karakol to persecute him, as Santashbekov had claimed he had. Immigration authorities may discredit testimony for lack of “inherent plausibility.”
There are also inconsistencies in Santashbekov‘s story. Despite a request for clarification at the hearing, Santashbekov did not explain to the judge why his new name appeared on a criminаl court document dated August 2011, though he testified that he began using his new name in December 2011 and a name-change document showed the same date. Santashbekov also gave different years for when he joined the Ata Meken party in his asylum application and in his testimony before the immigration judge. He testified that he joined the Ata Meken party in October 2010, but his asylum application said he joined in October 2009.
An inconsistency need not go to the heart of an applicant‘s claims to justify an adverse credibility determination, but “the inconsistencies spotted by the [judge] should not be trivial.” Tawuo, 799 F.3d at 727, 728 (inconsistencies in story not “earthshaking,” but prоvided substantial evidence for credibility determination nonetheless); see also Chun Sui Yuan v. Lynch, 827 F.3d 648, 656 (7th Cir. 2016) (granting petition; inconsistencies identified by Board were “either so easily explained or so trivial as to call into doubt the Board‘s decision“); Shmyhelskyy, 477 F.3d at 480 (“We have not hesitated to reverse an [immigration judge‘s] credibility assessment when grounded in trivial details or easily explained discrepancies.“). Here, Santashbekov‘s mistakes regarding important dates and his vague testimony support the adverse credibility determination.
While Santashbekov‘s documentary evidence may corroborate some aspects of his testimony, it does not undermine the judge‘s credibility finding. As the Board noted, the letter from Saparbaev does not mention any of the particulars of Santashbekov‘s claimed political activity or persecution (although a letter from a member of the national legislature may suggest that Santashbekov was somehow involved in politics). As the judge noted, Santashbekov did not submit other evidence from any other party members verifying his political activities. And as the Board noted, the medical evidence corroborates that Santashbekov was injured at the relevant times, but it does not independently establish that political persecution was the cause. The judge did not err by giving the medical records limited weight because of the vague testimony about how they were obtained. See Tawuo, 799 F.3d at 729 (it was asylum applicant‘s burden to authenticate documents; no error in refusing to let applicant submit more documents to corroborate testimony after immigration judge found initial round of documents “wanting“).
Some aspects of the Board‘s and judge‘s decisions, however, are troubling. For example, the judge wrote that Santashbekov‘s parents and sibling in Kyrgyzstan remain “well and intact.” But in his asylum application and in the hearing before the judge, Santashbekov said the same people who persecuted him had also beaten his brother and broken his brother‘s leg. Santashbekov submitted a medical document corroborating his brother‘s injury (although, as noted above, the judge did not err by giving medical records limited weight).
Similarly, the Board and immigration judge found that Santashbekov‘s testimony that he was not involved in the April 2010 protests, and that nothing bad happened to him as a result of the protests, was inconsistent with his asylum application. The application indicated that his political persecution was due “to the incidents related
We are also troubled by the Board‘s and immigration judge‘s concern that Santashbekov‘s asylum application did not include many of the details in his testimony before the judge, such as his December 2010 political speech. Material omissions may certainly supрort an adverse credibility finding. Shmyhelskyy, 477 F.3d at 480 (we may uphold adverse credibility findings when petitioner is “unable to explain a significant discrepancy between her hearing testimony and her asylum application“), citing Korniejew v. Ashcroft, 371 F.3d 377, 386 (7th Cir. 2004). However, the I-589 asylum application form provides small boxes to detail an applicant‘s experiеnces, containing space for about ten lines of text. We caution against drawing adverse credibility conclusions from an applicant providing differing levels of detail in such different contexts. The limited space on the I-589 form provides a readily apparent reason why Santashbekov was able tо provide a more detailed account of his alleged persecution at the hearing than on the application. Cf. Shmyhelskyy, 477 F.3d at 481 (applicant “provided no reason for his failure to allege this beating in his asylum application“). The Board‘s and the immigration judge‘s decisions were thus not flawless, but both considered Santashbekov‘s claims and evidence, made reasoned decisions, and supported their decisions with substantial evidence.
Finally, Santashbekov argues that the Board and immigration judge violated his due process rights by dismissing his arguments “with no analysis” and failing to “give fair and proper weight to the evidence at hand ....” See Reno v. Flores, 507 U.S. 292, 306 (1993) (Fifth Amendment entitles aliens to due process of law in deportation proceedings). This argument is wide of the mark. The Board and the judge provided ample analysis to justify their decisions. Santashbekov‘s argument that the Board and judge incorrectly weighed the evidence “is indistinguishable from a straightforward claim that [their decisions were] not supported by substantial evidence on the record.” Albu v. Holder, 761 F.3d 817, 822 (7th Cir. 2014). That argument fails both as a due process claim and on the merits.
Accordingly, Santashbekov failed to carry his burden of proof to establish his eligibility for asylum.