Gonchigsharav Nadmid v. Eric Holder, Jr.

784 F.3d 357, 2015 U.S. App. LEXIS 6550, 2015 WL 1787066
CourtCourt of Appeals for the Seventh Circuit
DecidedApril 21, 2015
Docket14-1477
StatusPublished
Cited by6 cases

This text of 784 F.3d 357 (Gonchigsharav Nadmid v. Eric Holder, Jr.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gonchigsharav Nadmid v. Eric Holder, Jr., 784 F.3d 357, 2015 U.S. App. LEXIS 6550, 2015 WL 1787066 (7th Cir. 2015).

Opinion

WILLIAMS, Circuit Judge.

Gonchigsharav Nadmid, a Mongolian businessman, petitions for review of the denial of his application for asylum and withholding from removal based on (1) his political opinion denouncing two prominent and corrupt politicians by name at a public rally and (2) his membership in the social group of business owners who seek to expose and end corruption between politicians and businesses. Because the adverse credibility determination of the immigration judge was flawed, we grant the petition and remand for further proceedings.

I. BACKGROUND

Nadmid, a 57-year-old native and citizen of Mongolia, came to the United States in 2003 on a visitor’s visa and overstayed. After being arrested in Pennsylvania for driving under the influence, he voluntarily departed in 2006 and returned to Mongolia, where he started a business manufacturing construction materials.

Nadmid returned to the United States in late 2009, presenting the same visa he had obtained six years earlier. He was detained at Chicago O’Hare International Airport, where a Customs and Border Patrol officer, through a Russian translator, conducted two interviews with him. During the first interview, Nadmid answered basic biographical questions, informed the officer that he was coming to the United States to visit his daughter (who holds a green card), and answered “no” when, asked if he feared returning to Mongolia. In a second interview later that day (and after speaking with his daughter), Nadmid told the officer that, if returned to Mongolia, he feared being killed by agents from Oyu Tolgoi (a large, partially government-owned mining operation in Mongolia), whose demand for $200,000 he had rebuffed. Nadmid mentioned several instances in which thugs, including a man named Tsegmid, confronted and threatened him at his business. ■ A month later an asylum officer conducted a credible-fear interview, this time through a Mongolian translator, and determined that Nadmid did have a credible fear of persecution.

In an affidavit accompanying his asylum application and in his testimony at his removal hearing in 2011, Nadmid described his political activity in Mongolia and the consequences he faced for speaking out against political corruption. He recounted that in mid-2009 he participated in an anti-corruption protest in the capital city of Ulaanbaatar, at which he spoke out on stage and accused two politicians from the ruling Mongolian People’s Party of misappropriating public funds. Five days after the protest, several unidentified men showed up at his business and assaulted him, knocking him unconscious with a metal rod to his head; afterward he had to be hospitalized. Nadmid’s assailants did not address him directly but he overheard them saying that he “talks too much shit.” The following month the men returned but Nadmid managed to slip out through the back door. Several weeks later two differ *359 ent men confronted him at his business and demanded $200,000, a sum well beyond Nadmid’s means. Nadmid returned home later that day to find that his kitchen window had been smashed by two bricks thrown inside.

A month later Nadmid sought out a reporter to publicize his continued opposition to governmental corruption and to show his harassers that he would not be intimidated. Soon thereafter the newspaper Mongolia Today ran a brief story profiling Nadmid as a small businessman who denounced corruption and refused to contribute to the Mongolian People’s Party.

A few weeks after the article was published, Nadmid recounted further, he was abducted at his business and taken to a cemetery. He managed to escape with the help of one of the assailants, Tsegmid, who had been a business acquaintance of his in the 1990s. After the incident, Nadmid shuttered his business and hid at campsites away from the capital; he left Mongolia in December. The day after he left, a notice bearing his photo was published in the Ulaanbaatar Times seeking information on his whereabouts and offering a reward.

Nadmid supplemented his application with the newspaper profile, the published notice seeking his whereabouts, a medical certificate confirming his post-beating treatment, his business license, and an excerpt from a report by the United States Agency for International Development documenting pervasive and increasing corruption in business and politics in Mongolia. He also offered the declaration and testimony of Dr. Alicia Campi, the president of a Mongolian business consultancy company who holds a Ph.D. in Mongolian studies and specializes in Mongolian politics, economics, and human rights. Dr. Campi testified that corruption in Mongolia was widespread, that the two politicians Nadmid had singled out at the rally were known for corruption and violent retaliation against opponents, that she had been able to confirm the authenticity of Nadmid’s identification documents through contacts in Mongolia, and that the newspaper article and notice resembled those she had seen in Mongolian newspapers.

The IJ concluded that Nadmid did not qualify for asylum because he was not credible and did not sufficiently corroborate his claim. Nadmid testified consistently with his written affidavit, the IJ acknowledged, but the inconsistencies between his testimony and the transcripts of his two airport interviews were “significant problems.” In the airport interviews, for instance, Nadmid had portrayed the threats as arising from a personal dispute and did not mention speaking at an anti-corruption rally. At these interviews, he also give different dates for the alleged incidents and described Tsegmid’s role inconsistently. Nadmid, the IJ added, did not convincingly explain why he overstayed his visa in 2003 or why his persecutors believed he would have as much as $200,000 after he returned to Mongolia with such few assets.

Because his testimony was not credible, the IJ determined that Nadmid needed to submit corroborating evidence. The IJ gave little weight to the newspapers, which he assumed had not been identified in the record, or to the medical certificate because it was poorly translated. The IJ also found Dr. Campi’s testimony reliable but insufficient because she lacked personal knowledge of Nadmid’s story. In the IJ’s view, Nadmid should have provided further documentation of his business activities in Mongolia and affidavits from friends, family members, or employees who witnessed his speech at the 2009 rally or the attacks against him.

And even if Nadmid’s testimony were credited, the IJ added, members of Nad *360 mid’s proposed social group — “Mongolian business owners who seek to expose and end political corruption of private businesses” — had nothing in common except being targeted for persecution, and was premised on a profession rather than any immutable and fundamental characteristic. Nor could Nadmid demonstrate a nexus between a protected ground and the persecution he suffered because he showed only that his attackers were “motivated by greed” and sought simply to extort money from him. Finally the IJ found that Nadmid did not qualify for withholding of removal or for protection under the Convention Against Torture.

The Board upheld the IJ’s findings about credibility, corroboration, and CAT, and dismissed Nadmid’s appeal. It did not consider the IJ’s alternative findings concerning social group membership or nexus.

II. ANALYSIS

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784 F.3d 357, 2015 U.S. App. LEXIS 6550, 2015 WL 1787066, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gonchigsharav-nadmid-v-eric-holder-jr-ca7-2015.