Xhevgjet Kllokoqi, a citizen of the Koso-vo region of the Federal Republic of Yugoslavia and an ethnic Albanian, appeals a final order of the Board of Immigration Appeals (BIA) affirming an immigration judge’s (IJ) denial of his application for political asylum and withholding of removal. Because the IJ discredited Kllokoqi without substantial evidence and failed to consider all of Kllokoqi’s persecution arguments, we vacate and remand for further proceedings.
I. Background
Xhevgjet Kllokoqi is a native and citizen of the Federal Republic of Yugoslavia, and an ethnic Albanian from the Kosovo region. Kllokoqi was also a member of the LDK (Democratic Leagué of Kosovo), a political party of Kosovar ethnic Albanians. During the time of Kllokoqi’s alleged involvement in the LDK party, ethnic Albanians in Kosovo experienced extreme oppression at the hands of ethnic Serbs through- Slobodan Milosevic’s ruling regime. Kllokoqi testified that the Serbian authorities arrested and detained him on five separate occasions in connection with his opposition involvement. Kllokoqi claims that on each of these occasions the police severely beat him.
Kllokoqi’s alleged problems with the Serbian authorities began in March 1993 after his participation in a demonstration for Kosovar independence and against the persecution of Albanian teachers. The Serbian authorities arrested Kllokoqi and sentenced him to 90 days in jail. He claims he served 45 days and was released after the Serbian authorities beat him severely enough to destroy his left testicle. Because of this beating, Kllokoqi was bedridden for 40 days and could not graduate from high school on time. He testified that he finished his final exams in August, but was issued a diploma with á June graduation date.
Then, on June 2, 1994, Kllokoqi claims he was arrested a second time after protesting continued Serbian control over Ko-sovo. He testified that during this detention, the police beat him with fists and billy clubs. Kllokoqi further alleged that the Serbian authorities detained him again on August 14, 1994. At that time, the police arrested him for distributing fliers demanding Albanian schools. He said that the police interrogated him and beat him with metal poles for an hour.
Kllokoqi’s fourth arrest came on October 19, 1995, for publishing an editorial in a local paper advocating the right of Albanians to celebrate their national flag day publicly. On this occasion, Kllokoqi claims he was detained for seven hours and beaten until he lost consciousness. Kllokoqi’s final arrest came on January 27, 1997. He claims the police arrested him while he gave a speech at an LDK demonstration.
Kllokoqi testified that he received a subpoena on May 20, 1997 but feared for his life and fled to Croatia rather than appear in court. During his eight-month stay in Croatia, Kllokoqi learned that the Yugoslav courts had convicted him in absentia and sentenced him to three years imprisonment for propaganda against the government. Kllokoqi then fled Croatia and arrived in the United States on March 3, 1998.
Kllokoqi applied for asylum in November of 1998. In conjunction with Klloko-qi’s application, Dr. David Goldberg of Cook County Hospital evaluated Kllokoqi to determine whether his injuries were consistent with the beatings he had described. In his report submitted to the IJ, Dr. Goldberg concluded that Kllokoqi’s injuries were indeed commensurate with his history of torture while imprisoned in Ko-sovo. More specifically, Dr. Goldberg found the absence of Kllokoqi’s left testicle consistent with a “reported scrotal injury with post-trauma involution of the testicle.” Also, Dr. Goldberg opined that the lesions on Kllokoqi’s shins were “consistent with the history of being struck on the shins by a round metal pole.”
The other expert in this case was the government’s forensic document examiner, Gideon Epstein. Epstein examined three pieces of evidence Kllokoqi presented in support of his application for asylum: Kllokoqi’s warrant, his subpoena, and his Yugoslav identification card. Epstein authenticated the identification card but could not authenticate the other documents because the government’s laboratory did not have originals for comparison. Epstein concluded however, that the warrant and subpoena were altered. Epstein opined that someone removed toner and replaced it with other writing, someone hand-drew a portion of a seal, and someone photocopied the documents, which, he said, was an unusual way to produce official forms.
Although Epstein found the evidence of alteration and the use of a photocopier suspicious and unusual, he could not state conclusively that the documents were not produced this way by the issuing authorities. He also conceded that there could be other reasons for why the toner was missing. For instance, Epstein theorized that the toner on the machine that produced the document might not have been heated properly, or the toner could have worn away from creasing the paper.
Kllokoqi had several hearings before the IJ. He answered questions about his political involvement and educational background. Kllokoqi could not remember the name of his high school, and was unclear regarding the language of instruction at this school and whether he took Serbian classes.
Following Kllokoqi’s hearings, the IJ denied Kllokoqi’s petition for asylum and withholding of removal. The IJ cited a lack of credibility and a failure to show a well-founded fear of future persecution. The IJ made an adverse credibility finding against Kllokoqi because, according to the IJ, Kllokoqi’s testimony regarding his education was inconsistent, his Yugoslav subpoena and warrant appeared to have been altered, and his injuries and political involvement were not corroborated with evidence at the hearing.
The IJ acknowledged that these concerns alone might be insufficient to merit an adverse credibility finding but concluded it was proper here in light of a State Department report warning that ethnic Albanians from other regions of the world might pose as Kosovars in an attempt to gain asylum. The IJ also denied the peti
The BIA affirmed the IJ’s decision without opinion.
II. DISCUSSION
A. Standard of Review
Because the BIA affirmed the IJ’s order without opinion, this court reviews the IJ’s credibility determination and order denying asylum directly.
Ememe v. Ashcroft,
The IJ’s adverse credibility determination is subject to the substantial evidence standard of review and must be “supported by ‘specific, cogent reasons ... [that] bear a legitimate nexus to the finding.’ ”
Ahmad v. INS,
Like an adverse credibility determination, we review the denial of a grant of asylum under the substantial evidence standard.
Lin v. Ashcroft,
B. Adverse Credibility Determination Flawed
We find that the IJ’s adverse credibility finding is not supported by specific, cogent reasons that bear a legitimate nexus to the IJ’s adverse credibility determination. The IJ’s adverse credibility ruling is based on three primary concerns. First, Kllokoqi’s alleged vague and inconsistent testimony about his education. Next, the purportedly fraudulent subpoena and warrant submitted by Kllokoqi. Finally, Kllokoqi’s alleged failure to submit supporting evidence to corroborate the details of. his alleged activities and mistreatment.
The IJ found several aspects of Klloko-qi’s testimony about his education inconsistent and suspicious: Kllokoqi did not remember the name of his high school, he gave inconsistent answers regarding the presence of Serbian teachers in the school and the language spoken there, and gave conflicting dates for his graduation and his convalescence following a beating by Serbian police.
Kllokoqi argues, and we agree, that these are minor inconsistencies and that the IJ erred in relying on them to make an adverse credibility finding.
See Gao,
299
However, a lapse in memory can be considered significant enough to raise serious credibility issues. In
Komiejew,
this court upheld an IJ’s adverse credibility ruling where an applicant claimed she was expelled from college because of her Jewish faith, then testified inconsistently as to whether she graduated from college.
Unlike the IJ, we do not think that Kllokoqi’s responses to questions about whether there were Serbian or Albanian teachers in his school or what languages classes were taught in his high school merit an adverse credibility finding. It seems possible from the record that Kllokoqi did not understand the questions. When asked about his classes, Kllokoqi responded, “Most of the classes were in Albanian but there were a lot of Serbian teachers too. We had Serbian teachers but the final exams that I took I gave in Albanian.” It is hard to tell whether Kllokoqi was saying that he himself had Serbian teachers or just that there were Serbian teachers in the school. Either way, the issue is minor and insignificant to the claim.
What the IJ seems to find most suspicious and inconsistent are Kllokoqi’s responses to questions about his graduation. Kllokoqi testified that he was arrested in March 1993, served 45 days of his sentence, and spent another 40 days recovering from the injury to his scrotum, which left him unable to walk.
The government argued that Kllokoqi could not have graduated from high school in June of 1993, as claimed in his application, if he was bedridden at the time. The IJ accepted the government’s argument. However, an asylum application need not be complete and may be supplemented with testimony.
See, e.g., Pop v. INS,
Unlike the IJ, we find nothing incredible about this explanation. We do not see it as an unusual practice for a school to allow a student to complete graduation requirements after the school year has completed, even though diplomas are printed in advance with an official graduation date of May or June. It is entirely logical that the school would have allowed Kllokoqi to complete his examinations at a later time given his injuries. As such, we find that the IJ’s adverse credibility finding was improper.
The IJ conceded that the vagueness and inconsistencies he found might not alone have led him to find Kllokoqi not credible but decided that they were significant be
This general statement in the Country Report is insufficient to rebut Kllokoqi’s detailed, specific testimony establishing his place of origin. State department reports are entitled to deference, but the IJ must make an individualized determination.
Zheng v. Gonzales,
Using the generalized Country Report as background and examining the individual circumstances of Kllokoqi’s case, there is no evidence to suggest that Kllokoqi is lying about his identity as a native of Kosovo. He presented a Yugoslav identification card that verifies he is a native of Kosovo. The government’s expert determined the card was authentic and the government does not contest the expert’s finding. The identification card and the overall consistency of Kllokoqi’s testimony convinces us that the IJ lacked sufficient reason to question Kllokoqi’s identity. The IJ’s speculation based solely on the Country Report cannot sustain an adverse credibility finding in the absence of any other evidence that directly refutes the IJ’s finding.
We are also not persuaded by the IJ’s contention that Kllokoqi’s credibility was damaged by his use of allegedly fraudulent documents. First, the conclusion that Kllokoqi’s warrant and subpoena were altered is 'flawed. Epstein acknowledged that he could not conclude that these documents were not in their original state. For example, he stated that the toner might not have been removed deceitfully, but, rather, rubbed off through folding and unfolding.
Second, even if the documents were altered by someone other than the issuing authorities, the IJ made no finding that Kllokoqi altered the docüments or knew or suspected that'they were altered. If he did not know, then the alleged alterations cannot be used as evidence against the credibility of his testimony that they are genuine.
See Kourski v. Ashcroft,
Third, the IJ ignored the identification card- as positive credibility evidence. Kllokoqi’s possession of an authentic Yugoslav identification card helps his credibility, and the government does not contest the card’s authenticity. The IJ, however, never mentions the card anywhere in his reasoning for making an adverse credibility finding and focuses instead on evidence that the warrant and subpoena were altered. The IJ should have given the identification card’s authenticity proper weight.
This court has “repeatedly emphasized that corroborative evidence is
not
necessary when the applicant’s testimony is otherwise credible.”
Lin,
Although Kllokoqi’s claim did not require corroboration, he presented evidence which the IJ appeared to ignore. As we mentioned above, Kllokoqi’s identification card corroborates his claim that he is from Kosovo. What is most disturbing to this court, however, is the IJ’s failure to properly consider Dr. Goldberg’s testimony. In his report, Dr. Goldberg concluded that Kllokoqi’s injuries, including those to his scrotum and shins, were consistent with severe beatings. If the IJ needed corroborating evidence, Dr. Goldberg’s testimony was sufficient.
Instead, the IJ inexplicably replaced the testimony of both Kllokoqi and Dr. Goldberg with his own suggestion that Kllokoqi injured his testicle while riding a bicycle. It is error to base an adverse credibility decision on speculation and conjecture. Korn
iejew,
C. Well-Founded Fear of Future Persecution
Aside from the improper adverse credibility finding, we remand Kllokoqi’s claim because the IJ failed to fully consider all of Kllokoqi’s arguments. We are therefore left unclear as to whether the government
An applicant may also affirmatively demonstrate a well-founded fear of future persecution. To do so, he must show a reasonable possibility of future persecution, not necessarily a clear probability of future persecution.
INS v. Cardoza-Fonseca,
The government can only rebut the presumption of future persecution by showing by a preponderance of the evidence that the conditions in Kosovo have changed enough to overcome the applicant’s fear of future persecution.
See
8 C.F.R. § 1208.13(b)(1)(i)(A);
Brucaj v. Ashcroft,
D. Humanitarian Relief
[21] Even if the government rebuts a presumption of Kllokoqi’s future persecution or if Kllokoqi fails to affirmatively show a well-founded fear of future persecution, the Attorney General can still grant Kllokoqi asylum “as a matter of discretion for humanitarian, reasons if the alien has suffered ... ‘atrocious forms of persecution.’”
Asani,
Kllokoqi carries a heavier burden in attempting to establish persecution under this method than he would, if he could establish a well-founded fear of persecution.
See Bereza v. INS,
III. CONCLUSION
For the foregoing reasons, we Vacate the BIA’s removal order and Remand for further proceedings consistent with this opinion.
While the final choice of a presiding judge remains always with the BIA, we strongly encourage the BIA to assign Kllokoqi’s case to a different judge on remand in order to avoid any perception of lingering bias.
See Georgis v. Ashcroft,
Notes
. That is not to say that corroboration is never necessary in immigration proceedings. Indeed, corroborating evidence is necessary to buttress an unconvincing case.
Uwase v. Ashcroft,
