In the
United States Court of Appeals For the Seventh Circuit ____________________ No. 16‐3941 VLADIMIR COJOCARI & VERONICA MORARU, Petitioners,
v.
JEFFERSON B. SESSIONS III, Attorney General of the United States, Respondent. ____________________ Petition for Review of an Order of the Board of Immigration Appeals. Nos. A088‐431‐779, A088‐431‐780. ____________________
ARGUED MAY 17, 2017 — DECIDED JULY 11, 2017 ____________________
Before WOOD, Chief Judge, and MANION and HAMILTON, Circuit Judges. HAMILTON, Circuit Judge. Vladimir Cojocari, a citizen of Moldova, seeks asylum, withholding of removal, and protec‐ tion under the United Nations Convention Against Torture. His wife Veronica Moraru is a derivative applicant for this re‐ lief. The immigration judge denied the application and or‐ 2 No. 16‐3941
dered the couple removed, and the Board of Immigration Ap‐ peals dismissed their appeal. The couple has petitioned for re‐ view in this court under 8 U.S.C. § 1252. We grant their petition. The Board’s decision rested on the immigration judge’s adverse credibility finding. Judicial re‐ view of credibility determinations is deferential, and review‐ ing courts rarely overturn credibility findings by agency ad‐ judicators. Such findings are not beyond judicial review, how‐ ever. This is one of those relatively unusual cases where the agency’s credibility finding is arbitrary and capricious. As we detail below, the immigration judge made mountains out of molehills, fashioned inconsistencies from whole cloth, and held Cojocari’s efforts to obtain corroborating documents against him. We remand for a fresh assessment of Cojocari’s credibility, preferably by a different immigration judge. I. Factual and Procedural Background A. Cojocari’s Experience with Political Persecution Vladimir Cojocari and Veronica Moraru are citizens of Moldova, a former Soviet republic that was under Com‐ munist control as recently as 2009. According to the U.S. De‐ partment of State, corruption is rampant in Moldova, and tor‐ ture by police and prison officials has been widely reported. Cojocari’s political troubles began in 2007 while he was a student at the Academy of Economic Studies in Chişinău, Moldova’s capital city. Cojocari became involved with the Ali‐ anță Moldova Noastră (AMN), which is translated as “Our Moldova Alliance.” AMN was a liberal democratic group that opposed government corruption and backed the mayoral campaign of a reform candidate. No. 16‐3941 3
Cojocari claims that Moldovan police and other unknown parties persecuted him because of his political activism. He says that he was arrested and beaten on several occasions be‐ tween June 2007, around the time of the Chişinău mayoral election, and October 2009, shortly before he and Veronica traveled to the United States. We describe these incidents be‐ low, drawing from the immigration judge’s decision as well as the administrative record. The judge concluded that Co‐ jocari’s testimony was not credible overall, with specific ex‐ ceptions. Nevertheless, the government has introduced no ev‐ idence actually rebutting Cojocari’s claims concerning his per‐ secution. Cojocari, conversely, has introduced substantial documentary evidence—including hospital and arrest rec‐ ords—that corroborates his testimony about these incidents. Cojocari says that he was first arrested on June 23, 2007. He testified that authorities transported him to the central po‐ lice station in Chişinău and interrogated him about his politi‐ cal activities. Police also ordered him to sign a document agreeing to become a police informant and not to cooperate with opposition parties. He refused. Cojocari was held over‐ night and repeatedly beaten. The following day, he was re‐ leased from custody and promptly checked himself into a hospital. According to hospital records that Cojocari submit‐ ted, he was diagnosed with blunt, closed‐chest trauma and contusions and abrasions, injuries consistent with his report of the beatings. Cojocari was next arrested on September 28, 2007. He was again held overnight. He testified that on this occasion, he was not beaten but police threatened him and again pressured him to sign some documents. Again he refused. Police then 4 No. 16‐3941
warned him that he “took the wrong decision” and that they would “see each other again in the near future.” Over eighteen months passed without further incident. In early April 2009, Cojocari joined other AMN members in a protest over recent parliamentary elections. The protest started peacefully but quickly turned violent. Cojocari testi‐ fied that he did not participate in any violence. He was never‐ theless arrested and “sentenced” to a week of detention, dur‐ ing which time he said he was beaten again. Cojocari was re‐ leased after nine days. He checked himself into a hospital. Medical records show he was diagnosed with cerebral trauma, a concussion, and various wounds and abrasions, again consistent with his report of beatings. Following this de‐ tention, Cojocari hired a lawyer and filed a complaint with the general prosecutor’s office in Chişinău. He also sought help at both AMN and Democratic Party headquarters, but nobody was willing to help him. Cojocari decided to lie low for a while. He and his wife Veronica moved to her parents’ home in the riverside village of Gura Galbenei, about thirty miles outside the capital city. On August 28, 2009, Cojocari was detained yet again while leaving the Academy of Economic Studies back in Chişinău. (His reasons for being present at the academy that day are somewhat murky, as discussed below.) According to Cojocari, police interrogated him and a detective told him the com‐ plaint he had filed with the prosecutor had “no value.” Co‐ jocari says he was beaten and held in a cell for three days with‐ out food or water. After he was released, Cojocari again went to the hospital, where records show he was diagnosed with a closed fracture in his arm and multiple bruises. Veronica was pregnant at the time. She met Cojocari at the hospital and told No. 16‐3941 5
him that government officials had visited their home and har‐ assed her. Veronica became so distressed as they spoke that she became physically ill and ultimately suffered a miscar‐ riage. At that point, Cojocari and Veronica decided to flee Moldova. They applied for visas so they could travel to the United States. A final incident occurred on October 25, 2009, shortly be‐ fore the couple were scheduled to depart for the United States. Cojocari testified that he was “kidnapped” by a group of unknown assailants who told him that people who “ask for too much justice are viewed as unwelcome elements in Mol‐ dovan society.” The men beat Cojocari until he blacked out, then left him bruised and battered in a field. Following the attack, Cojocari received medical treatment for more than a week. Despite that setback, Cojocari and Veronica departed Moldova as scheduled. They arrived in Chicago on Novem‐ ber 6, 2009. B. History of the Case In May 2010, well in advance of the one‐year filing dead‐ line, the couple applied for asylum pursuant to 8 U.S.C. § 1158(b)(1)(A). They also requested withholding of removal under 8 U.S.C. § 1231(b)(3)(A), and protection under the United Nations Convention Against Torture (“CAT”) as im‐ plemented through 8 C.F.R. §§ 1208.16 and 1208.18. An asylum officer referred the couple’s case to an immi‐ gration judge. The government then began removal proceed‐ ings against the couple under 8 U.S.C. § 1227(a)(1)(B) for over‐ staying their visas. The couple conceded the charge of remov‐ ability but contended that Cojocari was eligible for asylum 6 No. 16‐3941
and related relief because he would likely face political perse‐ cution and torture upon his return to Moldova. Cojocari testified at a series of immigration court hearings held on November 26, 2013; September 23, 2014; and Novem‐ ber 5, 2014. He supported his testimony with extensive docu‐ mentation, including numerous hospital and arrest records and an AMN membership card (proof of his political activity, which the immigration judge credited). Cojocari also offered a report and testimony by Professor Igor Kotler, an historian whom the immigration judge recognized as an expert on country conditions in Moldova. The immigration judge denied Cojocari’s application for asylum, withholding of removal, and protection under the CAT, and she ordered Cojocari and Veronica removed to Mol‐ dova. In reaching her decision, the judge found that (1) Co‐ jocari’s testimony was not credible, and (2) he provided insuf‐ ficient corroborating evidence to “meet his burden of proof to show that the central aspects of his claim are true.” The Board of Immigration Appeals dismissed the couple’s appeal in a de‐ cision generally agreeing with the immigration judge’s rea‐ soning. The couple then sought review in this court. II. Analysis A. Legal Framework 1. The REAL ID Act The Secretary of Homeland Security or the Attorney Gen‐ eral may grant asylum to an alien who qualifies as a “refu‐ gee.” 8 U.S.C. § 1158(b)(1)(A). Refugees are people who are unable or unwilling to return to their native countries because of “persecution or a well‐founded fear of persecution on ac‐ count of race, religion, nationality, membership in a particular No. 16‐3941 7
social group,” or—as relevant here—“political opinion.” 8 U.S.C. § 1101(a)(42)(A).1 The burden of proof rests on the applicant to establish that he or she is a qualifying refugee. § 1158(b)(1)(B)(i). In some cases, the applicant may carry the burden through testimony alone, but only if the immigration judge finds the testimony credible and persuasive. § 1158(b)(1)(B)(ii). Under the REAL ID Act of 2005, Pub. L. No. 109‐13, 119 Stat. 231, the immigration judge may base an adverse credi‐ bility finding on any inconsistencies or falsehoods in the ap‐ plicant’s testimony, without regard to whether such inconsist‐ encies or falsehoods go to the “heart of the applicant’s claim.” § 1158(b)(1)(B)(iii). Even so, the judge must still “distinguish between inconsistencies … that are material and those that are not.” Krishnapillai v. Holder, 563 F.3d 606, 617 (7th Cir. 2009); see also Hassan v. Holder, 571 F.3d 631, 637 (7th Cir. 2009) (“Al‐ though the REAL ID Act requires a highly deferential review of credibility findings, Immigration Judges may not rely on inconsistencies that are completely trivial, or that result from a misunderstanding or mischaracterization of the applicant’s
1 As noted above, in addition to applying for asylum Cojocari sought
withholding of removal and protection under the CAT. The requirements for these forms of relief are more demanding than for asylum. For with‐ holding of removal, the applicant must show a clear probability of perse‐ cution. The CAT requires proof that the applicant would more likely than not face torture if deported. See Shmyhelskyy v. Gonzales, 477 F.3d 474, 481– 82 (7th Cir. 2007). The immigration judge relied primarily on her adverse credibility determination in rejecting each of Cojocari’s theories of relief, and the parties focus on that adverse determination in their briefing here. Because we are remanding this case to the agency for a fresh look at Co‐ jocari’s credibility, the agency should consider on remand whether Co‐ jocari is entitled to relief under any of the three theories he has advanced. 8 No. 16‐3941
testimony.”) (citations omitted); accord, Ferreira v. Lynch, 831 F.3d 803, 811 (7th Cir. 2016); Chun Sui Yuan v. Lynch, 827 F.3d 648, 653 (7th Cir. 2016); Tawuo v. Lynch, 799 F.3d 725, 727 (7th Cir. 2015). “We … have reversed when the discrepancies were minor, when they concerned irrelevant details in light of the alien’s broader claim of persecution, or when the [immigra‐ tion judge] failed to consider the alien’s reasonable explana‐ tions offered for a discrepancy … .” Tarraf v. Gonzales, 495 F.3d 525, 532 (7th Cir. 2007) (citations omitted) (evaluating petition under pre–REAL ID framework). Pursuant to the REAL ID Act, the immigration judge may require the applicant to submit corroborative evidence even if the judge finds the applicant credible. Silais v. Sessions, 855 F.3d 736, 745 (7th Cir. 2017); Rapheal v. Mukasey, 533 F.3d 521, 527 (7th Cir. 2008). The applicant must provide supporting ev‐ idence upon request “unless the applicant does not have the evidence and cannot reasonably obtain the evidence.” § 1158(b)(1)(B)(ii); cf. Mitondo v. Mukasey, 523 F.3d 784, 789 (7th Cir. 2008) (“When documentary proof one way or the other is unavailable, the agency must use the details of an al‐ ien’s story to make an evaluation of its truth.”). 2. Standard and Scope of Review Where the Board of Immigration Appeals agrees with the immigration judge’s decision but supplements that decision with its own analysis, as it did here, we review both the un‐ derlying decision and the Board’s additional reasoning. San‐ tashbekov v. Lynch, 834 F.3d 836, 839 (7th Cir. 2016); Darin‐ chuluun v. Lynch, 804 F.3d 1208, 1214 (7th Cir. 2015); Yi Xian Chen v. Holder, 705 F.3d 624, 628 (7th Cir. 2013); Abraham v. No. 16‐3941 9
Holder, 647 F.3d 626, 632 (7th Cir. 2011); Milanouic v. Holder, 591 F.3d 566, 570 (7th Cir. 2010).2 We review findings of fact, including credibility determi‐ nations, deferentially, upholding them “so long as they have the support of substantial evidence.” Krishnapillai, 563 F.3d at 609, 615 (denying review). “Under the substantial evidence test, we must uphold the [immigration judge’s] findings if they are supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Abraham, 647 F.3d at 628, 632 (dismissing in part and denying review in part); accord, Silais, 855 F.3d at 738, 742 (denying review).
2 Citing Garrovillas v. INS, 156 F.3d 1010 (9th Cir. 1998), Cojocari sug‐
gests that where the Board conducts a de novo review, our review is limited to the Board’s decision “except to the extent that the Immigration Judge’s opinion is expressly adopted.” Here, the Board did not expressly adopt the immigration judge’s entire opinion (though it did expressly adopt the reasoning supporting her conclusion that Cojocari’s documentary evi‐ dence was insufficient). However, the Board also did not conduct a de novo review of the record. Instead, the Board reviewed the immigration judge’s findings for clear error, approved her adverse credibility determination, and then highlighted several aspects of her decision that supported her determination. At the same time, the Board also acknowledged in a foot‐ note two findings that did not support the judge’s credibility determina‐ tion. Under these circumstances, it is proper for us to consider not only those aspects of the immigration judge’s decision that the Board chose to emphasize but also those findings that the Board implicitly endorsed. Cf. Mei Dan Liu v. Ashcroft, 380 F.3d 307, 311–12 (7th Cir. 2004) (reviewing the Board’s decision alone where the decision rested on grounds alternative to those on which the immigration judge relied and where the Board “con‐ ducted its own analysis of the evidence and declined to adopt, affirm, or even address the adverse credibility determination that was the basis of the [immigration judge’s] opinion”). 10 No. 16‐3941
Even so, “an adverse credibility finding must be sup‐ ported by specific and cogent reasons, and the judge must consider explanations offered for gaps and inconsistencies.” Santashbekov, 834 F.3d at 838–39 (denying review); see also Yan Lin v. Holder, 656 F.3d 605, 606, 608 (7th Cir. 2011) (granting review) (court must defer to agency’s adverse credibility find‐ ing if it is “supported by specific, cogent reasons that bear a legitimate nexus to the finding”) (citation omitted). In Kadia v. Gonzales, 501 F.3d 817, 821 (7th Cir. 2007), we granted a petition for review where the immigration judge “failed to distinguish between material lies, on the one hand, and innocent mistakes, trivial inconsistencies, and harmless exaggerations, on the other hand.” We observed that in a case in which the “basis for the evaluation of the witness’s credi‐ bility is set forth in detail by the trier of fact and has nothing to do with demeanor but consists instead of inconsistencies or falsehoods in the witness’s testimony,” the reviewing court has “more than suspicion to work with in deciding whether the determination of credibility was reasonable.” Id. at 819. We cited Dong Gao v. BIA, where the Second Circuit granted the petition and observed: Although the substantial evidence standard leaves fact‐finding to the agency, “it does not permit an appellate court to defer to unreasoned rulings, or those based on legal error, faulty analysis, or misreadings of the record.” … Cred‐ ibility determinations that are based on the [im‐ migration judge’s] analysis of testimony, as op‐ posed to demeanor, are granted less deference. 482 F.3d 122, 127 (2d Cir. 2007) (citations omitted); see also id. (“Notably, when the outcome of an asylum application ‘rises No. 16‐3941 11
and falls purely on an [immigration judge’s] credibility find‐ ing, courts have been particularly concerned that the decision‐ maker carefully detail the reasoning leading to the adverse finding.’”) (citation omitted).3 B. Adverse Credibility Determination 1. Cojocari’s Testimony The immigration judge found both that Cojocari’s testi‐ mony was not credible and that he failed to provide sufficient documentary evidence to corroborate his testimony. The Board discerned “no error in the Immigration Judge’s adverse credibility finding” and agreed with the judge that the “doc‐ umentary evidence submitted by [Cojocari] was insufficient to rehabilitate his incredible testimony.” Yet of the various “in‐ consistencies” cited by the immigration judge, most are so trivial or benign that they cast no reasonable suspicion on the substance of Cojocari’s testimony. Others are not true incon‐ sistencies at all. For instance, the immigration judge criticized Cojocari for mixing up a few dates. Cojocari testified that he was released from the hospital following his June 2007 arrest on July 2,
3 Both Kadia and Dong Gao analyzed asylum claims filed before the
REAL ID Act took effect, but nothing about the Act abrogated the guid‐ ance we draw from them. On the contrary, Kadia observed that while the REAL ID Act (if it applied) would permit the immigration judge to “con‐ sider inaccuracies or falsehoods that do not go to the heart of the asylum applicant’s claim,” the judge can do so “only as part of his consideration of ‘the totality of the circumstances, and all relevant factors.’” 501 F.3d at 822; see also Chun Sui Yuan, 827 F.3d at 653 (under REAL ID Act, agency “still must distinguish between inconsistencies that are material and those that are trivial,” and “reasonable explanations for discrepancies must be considered”). 12 No. 16‐3941
2007. However, he acknowledged that his personal declara‐ tion, which he submitted to immigration authorities at some point after he filed his asylum application and affidavit, stated incorrectly that he was released on July 7. He said he thought his attorney had “taken care of” the mistake. Regard‐ ing his medical treatment immediately before departing for the United States, Cojocari testified that he remained in the hospital until November 6, 2009, a date consistent with the hospital records that he provided. Yet after the government confronted him with his passport showing that he had en‐ tered Ukraine one day earlier, Cojocari acknowledged that he must have left the hospital on November 5. We have remanded immigration decisions that placed out‐ sized importance on an applicant’s uncertainty about dates and times, the sorts of minor details that are most vulnerable to the vagaries of human memory. E.g., Ferreira, 831 F.3d at 811 (under REAL ID Act, remanding where adverse credibil‐ ity determination rested in part on trivial discrepancy in peti‐ tioner’s description about timing of assault); Tandia v. Gonza‐ les, 487 F.3d 1048, 1052–53 (7th Cir. 2007) (under pre–REAL ID framework, remanding where adverse credibility determina‐ tion rested on “insignificant details” such as dates); San Kai Kwok v. Gonzales, 455 F.3d 766, 769–70 (7th Cir. 2006) (under pre–REAL ID framework, remanding where adverse credibil‐ ity determination rested on “minor discrepancies that are eas‐ ily explained” and on “speculation or conjecture”) (citations omitted). Other circuits have likewise rejected adverse credibility determinations resting on trivial inconsistencies or mistakes about minor details such as dates. E.g., Marouf v. Lynch, 811 No. 16‐3941 13
F.3d 174, 185 (6th Cir. 2016) (“In the context of a largely con‐ sistent account of persecution, reference to an incorrect date is not sufficient basis for discrediting an applicant’s account. An inability to accurately recall the date when a traumatic event occurred is not particularly probative of a witness’s credibility when alleging traumatic persecution, because such traumatic persecution itself may cause the witness difficulty in recalling details of the incident.”) (citations omitted); Ilunga v. Holder, 777 F.3d 199, 207 (4th Cir. 2015) (“The totality of the circumstances standard … provides an [immigration judge] with ample discretion in assessing credibility. It does not, however, permit a judge to ‘cherry pick’ facts or inconsisten‐ cies to support an adverse credibility finding that is unsup‐ ported by the record as a whole.”); Wenxing Su v. Holder, 570 F. App’x 96, 99 (2d Cir. 2014) (remanding where immigration judge relied on, among other things “immaterial omissions” in letter from petitioner’s wife and criticized petitioner for failing to “specifically document or precisely remember one employer during a period of transitory work”); Ai Jun Zhi v. Holder, 751 F.3d 1088, 1092 (9th Cir. 2014) (remanding where immigration judge based adverse decision principally on “ut‐ terly trivial” discrepancy in dates) (citation omitted); Qiuyun Zheng v. Holder, 530 F. App’x 87, 88–89 (2d Cir. 2013) (remand‐ ing where immigration judge based adverse decision in part on “one‐ and two‐day inconsistencies,” which petitioner “promptly corrected”).4
4 Cf. Yaogang Ren v. Holder, 648 F.3d 1079, 1086 (9th Cir. 2011) (denying
petition but explaining that although the REAL ID Act “gives immigration judges the power to consider any inconsistency in evaluating an appli‐ cant’s credibility, the power to consider any inconsistency ‘is quite distinct from the issue of whether the inconsistencies cited support an adverse 14 No. 16‐3941
Cojocari’s uncertainty about his dates of hospital dis‐ charge has little bearing on the reliability of his broader nar‐ rative. There seem to be no real doubts about whether Co‐ jocari actually received the treatment he described. In a similar vein, Cojocari initially testified that after his April 2009 arrest and detention, he and his wife Veronica had stayed with his in‐laws in Gura Galbenei for about a month and a half. The immigration judge confronted him with his affidavit accompanying his asylum application, which said that he lived with his in‐laws for two to three months. Co‐ jocari acknowledged the discrepancy, then suggested he may have stayed with his in‐laws for about two and a half months. We do not see how Cojocari’s imperfect recall about the length of his stay in the Moldovan countryside—several years before his immigration hearings—is a reliable indicator of the truth‐ fulness of his testimony about persecution for his political ac‐ tivities. The immigration judge also found great significance in small variations in Cojocari’s descriptions of the abuse he suf‐ fered at the hands of Moldovan authorities. Regarding the first beating on June 23, 2007, Cojocari testified that a detec‐ tive’s assistant struck him with a baton. He had not mentioned this particular detail in his written statements. He did write, however, that a group of men beat him and other detainees with batons, and a medical certificate confirms that he suf‐ fered “injuries caused by traumatic action with blunt objects.”
credibility determination.’ … As we have repeatedly held, ‘minor discrep‐ ancies in dates that … cannot be viewed as attempts by the applicant to enhance his claims of persecution have no bearing on credibility.’”) (cita‐ tions omitted). No. 16‐3941 15
Similarly, in describing his August 28, 2009 interrogation, Co‐ jocari testified that a detective struck his hand with a baton. In his written statements he indicated more generally that po‐ lice struck him with their fists, feet, and batons, without spec‐ ifying that his hand was struck with the baton. Once again, a medical certificate confirms that Cojocari suffered injuries consistent with a beating: a closed fracture in his arm and multiple bruises. The immigration judge was greatly troubled by the slightly greater specificity in Cojocari’s live testimony. Yet it is perfectly ordinary that an asylum applicant, like virtually any other witness, will summarize his experience in writing and provide additional detail in face‐to‐face testimony in a hear‐ ing stage. The judge’s approach to this case would require ap‐ plicants to make sure that each written account of their per‐ sonal histories is exhaustive, on pain of being disbelieved and returned to their home countries of persecution. We doubt that busy immigration officials charged with re‐ viewing asylum applications and attachments would wel‐ come such an onerous rule, and we decline to endorse it. See Chun Sui Yuan, 827 F.3d at 654–55 (remanding where adverse credibility determination rested in part on slight inconsisten‐ cies between petitioner’s statements and medical report that could have been explained by the impact of petitioner’s inju‐ ries, his lack of sophistication, or translation errors) (“That greater detail is provided in live testimony than was included in an asylum application is not a reason to reject a petitioner’s testimony as not credible.”); see also Tarraf, 495 F.3d at 532 (“We … have noted that the failure to mention, in an asylum 16 No. 16‐3941
application, certain details that later appear in live testimony does not render an alien’s testimony per se incredible.”).5 The immigration judge also cited an apparent incon‐ sistency between two translated medical certificates relating to Cojocari’s October 2009 treatment. A certificate that Co‐ jocari submitted with his asylum application said that he suf‐ fered a dislocated right shoulder and bruises on his right arm. Another certificate said that Cojocari suffered a closed frac‐ ture of the “radial bone” in his right arm along with “multiple hematomas” (i.e., bruises). The difference between these descriptions seems too slen‐ der a reed on which to rest an adverse credibility finding. For all we know, the discrepancy may be attributable to transla‐ tion errors. The two certificates were translated from hand‐ written physicians’ records by different translators at differ‐ ent times. Cojocari certainly cannot be faulted for any mis‐ takes in translation. See Kueviakoe v. U.S. Attorney General, 567 F.3d 1301, 1305 (11th Cir. 2009) (rejecting as “wholly immate‐ rial” a discrepancy between petitioner’s live testimony about a “car” and his written statement about a “truck,” where pe‐ titioner’s words were translated, “suggesting that he was not the one making the word choice”). Moreover, a third certifi‐ cate—prepared by the same translator who had noted Co‐ jocari’s closed fracture—said that he suffered a dislocated right shoulder in October 2009. During his hearings, Cojocari repeatedly testified that he suffered a shoulder injury, and
5 To support its decision dismissing Cojocari’s appeal, the Board spe‐
cifically noted that Cojocari did not include in his written statements the fact that he was struck on the hand with a baton during his August 2009 interrogation. We do not understand the agency’s preoccupation with this detail. No. 16‐3941 17
neither the judge nor the government confronted him about the possible inconsistency between two of the medical certifi‐ cates. There is no reason to believe that Cojocari fabricated ei‐ ther of these documents. The immigration judge made no finding that the medical certificates were falsified in any way. The perceived discrepancies we have just summarized are not adequate to support the agency’s adverse credibility find‐ ing. However, two aspects of Cojocari’s case (both of which the Board cited) give us pause. First, Cojocari has offered some shifting explanations con‐ cerning his enrollment at the Academy of Economic Studies. In his asylum application, he said that he attended the acad‐ emy through May 2009. In his declaration, he wrote that he was arrested on August 28, 2009 while “coming home from school.” At his initial hearing, Cojocari testified (consistent with his declaration) that he had “just finished [his] classes at the academy” on August 28 when he was arrested. Later in the hearing, however, he said that he had last attended classes in February 2009, that his reference to May in the application was a mistake, and that he had dropped by the academy in August to collect a document showing that he was on aca‐ demic leave. That seems straightforward enough—except that the document, which Cojocari offered into evidence, is dated October 16, 2009. When the judge confronted Cojocari about the inconsistent dates, he had “no explanation for this.” In his second hearing, with the help of new counsel, Co‐ jocari offered an explanation: (1) he last studied at the acad‐ emy in February; (2) he went on academic leave in May; (3) he requested a certificate in August and was given a receipt for 18 No. 16‐3941
his request; and (4) he finally obtained the certificate in Octo‐ ber. Perhaps so, but the immigration judge could reasonably have viewed this evolving narrative with some suspicion. Second, Cojocari has offered inconsistent accounts of his October 25, 2009 beating and medical treatment. In his affida‐ vit accompanying his asylum application, Cojocari wrote that he returned home the day after his beating “with the help of [his] friends” and that he received medical care at home for ten days. In his declaration and during his first hearing, how‐ ever, Cojocari said that it was his father‐in‐law who picked him up the morning of October 26. He also testified during his first hearing that he received inpatient treatment at the hospital. He had “no explanation” for his statement in his af‐ fidavit that he received treatment at home. But by his second hearing, Cojocari’s story seemed to shift again, as he testified that he visited the hospital “every day that [he] was staying home.” A reasonable factfinder could perhaps conclude that Co‐ jocari’s varying accounts of his university enrollment status and his October 2009 medical care weigh against the credibil‐ ity of his testimony about his persecution. A reasonable fact‐ finder could also conclude that these discrepancies are not material indications about the reliability of his overall account of persecution for his political activity, which is the critical is‐ sue in his asylum application. There seems to be no dispute that, whatever Cojocari’s reasons for visiting the academy on August 28, 2009, he was arrested there on that date. There is certainly no dispute that, whoever came to Cojocari’s aid after his October 2009 beating, someone retrieved him and helped him secure medical attention. See Chun Sui Yuan, 827 F.3d at 654 (where petitioner stated in personal statement that police No. 16‐3941 19
took him to hospital but later testified that he traveled by am‐ bulance, there was no “significant inconsistency” as there was “no disagreement by the government that [petitioner] was transported to the hospital by someone”). Nor, as discussed be‐ low, does there seem to be any reason to believe the hospital records concerning Cojocari’s injuries and treatment were fab‐ ricated. Even if the varying accounts of Cojocari’s enrollment sta‐ tus and October 2009 medical care might have allowed a rea‐ sonable factfinder to discredit his detailed account of political persecution over a period of more than two years, we cannot deny relief on that theory. The actual credibility decision by the immigration judge emphasized many other trivial matters that do not have a plausible bearing on Cojocari’s credibility. We have no confidence that the judge would have reached the same adverse decision if she had focused on the one or two details that might actually matter. Even with the deference we owe to credibility findings, both before and after passage of the REAL ID Act we have remanded in cases where the immigration judge focused on trivial discrepancies or made other errors that called the judge’s overall analysis into question, and we have done so even if the record contained some facts that might have sup‐ ported an adverse credibility determination. See, e.g., Hongting Liu v. Lynch, 788 F.3d 737, 742 (7th Cir. 2015) (where substantial evidence did not support four of judge’s five rea‐ sons for discounting petitioner’s testimony, petitioner’s incon‐ sistent statements about timing of visa and passport applica‐ tions were “not independently sufficient to support a general finding of incredibility”); Kadia, 501 F.3d at 821 (where various 20 No. 16‐3941
inconsistencies could have led judge to conclude that peti‐ tioner lied, remand was still necessary because “judge made a number of mistakes, uncorrected by the Board,” and review‐ ing court could not be confident that “had he not made those mistakes he still would have disbelieved the petitioner”); Ad‐ ekpe v. Gonzales, 480 F.3d 525, 531–32 (7th Cir. 2007) (where majority of discrepancies on which judge relied were imma‐ terial but two discrepancies were arguably important, re‐ mand was still necessary because adverse credibility determi‐ nation “relied in such large part on unimportant and explica‐ ble discrepancies”); Georgis v. Ashcroft, 328 F.3d 962, 970 (7th Cir. 2003) (where five reasons underlying adverse credibility determination were either unsupported or based on incom‐ plete or improperly excluded evidence, reviewing court did not “defer to [judge’s] credibility determination on … remain‐ ing sixth ground alone”). As in other administrative law regimes like Social Security disability decisions, where the administrative law judge must build a “logical bridge from evidence to conclusion,” Brown v. Colvin, 845 F.3d 247, 251 (7th Cir. 2016) (citation omitted), an immigration judge must base a credibility finding on “cogent reasons bearing a legitimate nexus to the finding,” Giday v. Gonzales, 434 F.3d 543, 553 (7th Cir. 2006). The judge in this case did not base her decision on cogent reasons, so we cannot uphold her credibility determination. 2. Corroborating Evidence Under the REAL ID Act, the immigration judge was enti‐ tled to request corroborating evidence from Cojocari even if she found him otherwise credible. 8 U.S.C. § 1158(b)(1)(B)(ii); Silais, 855 F.3d at 745. As noted, Cojocari supplied substantial supporting evidence, including medical certificates, arrest No. 16‐3941 21
records, letters from his attorney and family members, and an AMN membership card. The judge concluded that Cojocari “did not provide sufficient reliable evidence to meet his bur‐ den of proof to show that the central aspects of his claim are true.” The Board agreed with the immigration judge, “for the reasons stated in her decision, that the documentary evidence … was insufficient to rehabilitate [Cojocari’s] incredible testi‐ mony.” We conclude, however, that the judge’s refusal to credit this documentary evidence was based on arbitrary and capricious reasoning. The judge first criticized Cojocari for submitting medical documentation “specifically in order to bolster his asylum claim.” We do not understand this criticism. When he first ap‐ plied for asylum, Cojocari had submitted a medical certificate detailing his October 2009 injuries. In advance of his first mer‐ its hearing in November 2013, he submitted additional certif‐ icates pertaining to his treatment following his June 2007 ar‐ rest and his 2009 arrests and abduction. Cojocari, who submitted his initial asylum application pro se, testified that he had been concerned about filing a timely claim. He had asked his mother to forward him whatever doc‐ uments she could readily obtain. Later, after he understood more fully the “needs of proof and documentation,” Cojocari asked his mother to track down and send along additional records. Following his first hearing—when, as discussed above, the government cross‐examined him about his No‐ vember 2009 hospital discharge date—Cojocari obtained an additional record that said he was “under ambulatory treat‐ ment” until November 6, 2009 but had his last consultation on November 5, 2009. According to Cojocari’s passport, he and Veronica departed Moldova (by bus) on November 5 for 22 No. 16‐3941
Ukraine, and then flew from Ukraine to the United States on November 6. We do not see why Cojocari should be penalized for com‐ plying with his burden under the REAL ID Act to provide cor‐ roborating evidence. Nor do we see any reason to distrust the documents that he submitted at various points while his case was pending. Though the government speculated at oral ar‐ gument that Cojocari’s medical records (and, for that matter, his arrest records) may have been fabricated, the immigration judge made no such finding. There is no specific evidence in the record to support any such finding. The government had questioned Cojocari’s country expert, Professor Igor Kotler, about the ease of obtaining fake medical documents in Mol‐ dova, but Professor Kotler could not answer that question di‐ rectly, and the government made no further attempt to dis‐ prove or even challenge the authenticity of the documents. In fact, when Cojocari’s attorney offered to submit the original medical certificates (with envelopes) for the government’s re‐ view, government counsel remarked, “I’m not a document ex‐ pert.”6 Next, the judge wrote that Cojocari’s arrest records “are of reduced evidentiary value because they are contradicted by [his] testimony.” Again, we do not understand this criticism.
6 Though the immigration judge did not question the authenticity of
the medical certificates Cojocari submitted, she said she was “perplexed” that Cojocari neglected to supplement those certificates with a copy of his personal medical book. The judge did not explain why the medical book (which apparently summarizes Cojocari’s entire medical history and con‐ tains doctors’ notes handwritten in Romanian script) was any better evi‐ dence, or more useful for present purposes, than the certificates that Co‐ jocari produced. This subject may be explored on remand. No. 16‐3941 23
The arrest records confirm that Cojocari was detained in June 2007 and in April and August 2009, just as he testified. The records say that Cojocari was arrested not because of his po‐ litical activities but because he committed such infractions as “insubordination to legal requests of a police officer” and striking a police officer during protests. Those conflicts offer little basis for disbelieving Cojocari. If he was in fact arrested for lawful reasons unrelated to his political opinion, such ar‐ rests would not support his application for asylum, of course. But the immigration judge did not explain whether she chose to credit the official accounts of Cojocari’s police encounters over his description of those events, nor, if she did, the reason for her distrust of Cojocari’s description. It should come as no surprise that a police force known for corruption and abuse might not have described accurately the circumstances of a dissident’s arrests and detentions. If the of‐ ficial records of police states are to be treated as gospel, we doubt many bona fide political asylum seekers could prove their claims. See Zhen Nan Lin v. U.S. Dep’t of Justice, 459 F.3d 255, 269–70 (2d Cir. 2006) (treating Chinese consular report as “highly unreliable and therefore insufficient to satisfy the substantial evidence requirement” because report was “based on the opinions of Chinese government officials who appear to have powerful incentives to be less than candid on the sub‐ ject of their government’s persecution of political dissidents”). Finally, the immigration judge wrote that two letters by Cojocari’s Moldovan attorney, which (the judge acknow‐ ledged) “concern the mistreatment [Cojocari] suffered during his April 2009 detention and do not contradict [his] testi‐ mony,” are nevertheless insufficient supporting evidence be‐ 24 No. 16‐3941
cause (1) the letters are dated as of October 2013 and (2) Co‐ jocari did not supplement the letters with a copy of the com‐ plaint that his attorney filed with the general prosecutor’s of‐ fice. We see no reason to discount the attorney’s letters simply because they were written for purposes of the hearing in the United States and not back at the time of the events described. And while a copy of Cojocari’s complaint might have been useful, we have cautioned immigration judges to use the cor‐ roboration requirement reasonably and to refrain from “‘could have–should have’ speculation about what evidence the applicant could have brought in a text‐book environ‐ ment.” Balogun v. Ashcroft, 374 F.3d 492, 502 (7th Cir. 2004). The attorney’s letters reinforce Cojocari’s claims. The attorney wrote that police “clearly abused their authority” and that an “actual attempt to cover‐up the case of mistreatment of Vla‐ dimir Cojocari by police authorities occurred.” The immigration judge discounted Cojocari’s supporting documentation for arbitrary reasons not based on substantial evidence. The agency on remand should take a fresh look at this documentation, in addition to Cojocari’s testimony. We do not conclude now that the documentary evidence compels a decision in Cojocari’s favor. But the agency should consider the evidence fairly, without resorting to “could have–should have” speculation.” Id. 3. Kotler’s Testimony and Country Reports In addition to testifying about his personal experience with political persecution and supporting that testimony with documentary evidence, Cojocari offered the expert report and testimony of Professor Igor Kotler, an historian and visiting scholar at Rutgers University. Professor Kotler described Mol‐ dova’s political system as unstable. He noted that Cojocari’s No. 16‐3941 25
political party, AMN, the “last source of true democracy,” ceased to exist as of April 2011. Although the country is not currently under Communist rule, Kotler wrote that “superfi‐ cial changes” in government have had “practically no effect on the human rights situation.” He added that corruption is “rampant” and has “deeply penetrated all spheres of the Mol‐ dova[n] society.” According to Kotler’s report, Cojocari would likely face “persecution, including physical abuse, intimidation and ar‐ bitrary detention, on the account of his political opinion, if re‐ turned to Moldova.” Kotler reiterated the point in his hearing testimony, predicting that Moldovan authorities would likely arrest and torture Cojocari because he is a “democratic per‐ son” who has lived in the United States. The government in‐ troduced no expert to rebut Kotler’s testimony and offered lit‐ tle in the way of cross‐examination. The immigration judge recognized Kotler as an “expert witness on country conditions in Moldova,” and she observed that “Kotler’s opinion that the Moldovan government would torture [Cojocari] if he returned to Moldova is not purely speculative.” Nevertheless, the judge concluded that while “Kotler’s testimony was reliable, the documentary evidence does not support his assertions.” By “documentary evi‐ dence,” the judge was referring to the U.S. Department of State “Country Reports on Human Rights Practices” for 2012 and 2013. As the judge acknowledged, however, those country re‐ ports warn of police brutality and “[i]mpunity for torture and inhuman or degrading treatment.” Both reports describe gov‐ ernment corruption as the “most significant human rights problem in the country.” The 2012 report cites police torture 26 No. 16‐3941
and mistreatment of detainees as a ”second major area of con‐ cern,” while the 2013 report states that police abuse remains a “serious problem” and that implementation of anti‐torture measures has been “inconsistent.” Both reports highlight the government’s failure to hold officials accountable for abuses committed during the April 2009 crackdown on political demonstrations—the very crackdown that resulted in Co‐ jocari’s nine‐day detention and subsequent flight to Gura Gal‐ benei. The immigration judge brushed aside these stark warn‐ ings in the country reports. She concluded that there was “no evidence in the record … that persons similarly situated to [Cojocari] will likely be tortured upon return to Moldova.” But there was such evidence: Kotler’s testimony and expert report, which the government failed to rebut and which the judge credited as reliable. The judge gave short shrift to this unrebutted evidence but offered no plausible explanation for doing so. On remand, the agency should take a close look at the record concerning the social and political situation in Mol‐ dova as it relates to Cojocari’s claims. To that end, the agency should consider reopening the record to take account of more current data, such as the State Department’s 2016 report (which, like the earlier reports, cites widespread corruption and allegations of torture and mistreatment by police as sig‐ nificant problems in the country). III. Conclusion We do not often see a timely asylum case where the appli‐ cant is a citizen of a country infamous for corruption and po‐ litical oppression and presents a broadly consistent narrative and substantial corroboration. Yet Cojocari has done just that. No. 16‐3941 27
Granted, his testimony includes a handful of minor discrep‐ ancies, and a couple of these—notably the timeline involving his university enrollment and the details of his October 2009 hospitalization—might have supported a plausible adverse credibility finding. But most of the discrepancies on which the immigration judge relied are so trivial or illusory that we have no confidence in her analysis or in the Board’s decision resting on that analysis. Cojocari is entitled to a fresh look at his prior testimony and the evidence he supplied in support of his application for asylum, withholding of removal, and protection under the CAT. We therefore grant the petition for review. We urge the Board to assign this case to a different immigration judge for the remand proceedings. That is the best way to ensure that Cojocari gets the fair shake he deserves. E.g., Castilho de Oliveira v. Holder, 564 F.3d 892, 900 (7th Cir. 2009); Tadesse v. Gonzales, 492 F.3d 905, 912 (7th Cir. 2007); Bace v. Ashcroft, 352 F.3d 1133, 1141 (7th Cir. 2003); cf. Cir. R. 36 (7th Cir. 2016) (cases remanded for new trial are presumptively assigned to a different district judge). On remand, the immigration judge should allow counsel for both sides to supplement the record if there is additional evidence (such as Cojocari’s medical book or an updated re‐ port on the political landscape in Moldova) that would assist the judge in assessing the risk of persecution or torture that Cojocari would face if deported. The petition for review is GRANTED, the decision of the Board of Immigration Appeals is VACATED, and the case is REMANDED to the Board for further proceedings consistent with this opinion.