CA7 remands Immigration judge’s credibility findings with respect to asylum applicant claiming persecution in Moldova

Record failed to contain sufficient evidence to support IJ’s denial of alien’s application for asylum and withholding of removal relief, where alien alleged that police in Moldova persecuted him on account of his political beliefs. Although IJ found that alien was not credible in his persecution allegations, govt. introduced no evidence that actually rebutted alien’s claims of series of arrests and beatings by police or his claim that return to Moldova would likely result in continued arrests and beatings. Moreover, alien introduced substantial documentary evidence that included hospital and arrest records that corroborated his testimony about said incidents. Also, IJ placed outsized importance on alien’s inconsistencies regarding minor details about incidents of persecution. As such, alien was entitled to remand for new consideration of his claims.

Cojocari, a citizen of the former Soviet republic of Moldova, sought asylum, 8 U.S.C. 1158(b)(1)(A); withholding of removal, 8 U.S.C. 1231(b)(3)(A); and protection under the United Nations Convention Against Torture. His wife is a derivative applicant. The immigration judge denied the application and ordered removal. The BIA dismissed an appeal. The Seventh Circuit granted a petition under 8 U.S.C. 1252, stating that in this case, the agency’s credibility finding was arbitrary and capricious; the immigration judge “made mountains out of molehills, fashioned inconsistencies from whole cloth, and held Cojocari’s efforts to obtain corroborating documents against him.” The court noted that the State Department reports that corruption is rampant in Moldova, and torture by police and prison officials has been widely reported. The government introduced no evidence actually rebutting Cojocari’s claims concerning his persecution for political activism, while Cojocari introduced substantial documentary evidence, including hospital and arrest records.

____________________________________

VLADIMIR COJOCARI & VERONICA MORARU, Petitioners,
v.
JEFFERSON B. SESSIONS III, Attorney General of the United States, Respondent.
No. 16-3941.

United States Court of Appeals, Seventh Circuit.
Argued May 17, 2017.
Decided July 11, 2017.

Shahrzad Baghai, Robert Dale Tennyson, Jr., Virginia Lee Gordon, OIL, for Respondent.

Howard R. Davis, for Petitioner.

Petition for Review of an Order of the Board of Immigration Appeals, Nos. A088-431-779, A088-431-780.

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 protection under the United Nations Convention Against Torture. His wife Veronica Moraru is a derivative applicant for this relief. The immigration judge denied the application and ordered the couple removed, and the Board of Immigration Appeals dismissed their appeal. The couple has petitioned for review 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 review of credibility determinations is deferential, and reviewing courts rarely overturn credibility findings by agency adjudicators. Such findings are not beyond judicial review, however. 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 Communist control as recently as 2009. According to the U.S. Department of State, corruption is rampant in Moldova, and torture 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 Aliantă 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.

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 between 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 below, drawing from the immigration judge’s decision as well as the administrative record. The judge concluded that Cojocari’s testimony was not credible overall, with specific exceptions. Nevertheless, the government has introduced no evidence actually rebutting Cojocari’s claims concerning his persecution. Cojocari, conversely, has introduced substantial documentary evidence—including hospital and arrest records—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 police station in Chişinău and interrogated him about his political 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 overnight and repeatedly beaten. The following day, he was released from custody and promptly checked himself into a hospital. According to hospital records that Cojocari submitted, 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 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 testified that he did not participate in any violence. He was nevertheless arrested and “sentenced” to a week of detention, during which time he said he was beaten again. Cojocari was released 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 detention, 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 complaint he had filed with the prosecutor had “no value.” Cojocari says he was beaten and held in a cell for three days without 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 him that government officials had visited their home and harassed her. Veronica became so distressed as they spoke that she became physically ill and ultimately suffered a miscarriage. 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 before 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 Moldovan 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 November 6, 2009.

B. History of the Case

In May 2010, well in advance of the one-year filing deadline, 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 implemented through 8 C.F.R. §§ 1208.16 and 1208.18.

An asylum officer referred the couple’s case to an immigration judge. The government then began removal proceedings against the couple under 8 U.S.C. § 1227(a)(1)(B) for overstaying their visas. The couple conceded the charge of removability but contended that Cojocari was eligible for asylum and related relief because he would likely face political persecution 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 November 5, 2014. He supported his testimony with extensive documentation, 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 Moldova. In reaching her decision, the judge found that (1) Cojocari’s testimony was not credible, and (2) he provided insufficient 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 decision generally agreeing with the immigration judge’s reasoning. 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 General may grant asylum to an alien who qualifies as a “refugee.” 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 account of race, religion, nationality, membership in a particular 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 credibility finding on any inconsistencies or falsehoods in the applicant’s testimony, without regard to whether such inconsistencies 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) (“Although 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 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 [immigration judge] failed to consider the alien’s reasonable explanations 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 evidence 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 alien’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 underlying decision and the Board’s additional reasoning. Santashbekov v. Lynch, 834 F.3d 836, 839 (7th Cir. 2016); Darinchuluun 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. 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 determinations, 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).

Even so, “an adverse credibility finding must be supported 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 finding 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 credibility 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.” . . . Credibility determinations that are based on the [immigration judge’s] analysis of testimony, as opposed 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 and falls purely on an [immigration judge’s] credibility finding, courts have been particularly concerned that the decisionmaker 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 testimony 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 “documentary evidence submitted by [Cojocari] was insufficient to rehabilitate his incredible testimony.” Yet of the various “inconsistencies” 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 inconsistencies 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, 2007. However, he acknowledged that his personal declaration, 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. Regarding 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 entered Ukraine one day earlier, Cojocari acknowledged that he must have left the hospital on November 5.

We have remanded immigration decisions that placed outsized 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 credibility determination rested in part on trivial discrepancy in petitioner’s description about timing of assault); Tandia v. Gonzales, 487 F.3d 1048, 1052-53 (7th Cir. 2007) (under pre-REAL ID framework, remanding where adverse credibility determination 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 credibility determination rested on “minor discrepancies that are easily 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 F.3d 174, 185 (6th Cir. 2016) (“In the context of a largely consistent 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 inconsistencies to support an adverse credibility finding that is unsupported 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 “utterly trivial” discrepancy in dates) (citation omitted); Qiuyun Zheng v. Holder, 530 F. App’x 87, 88-89 (2d Cir. 2013) (remanding where immigration judge based adverse decision in part on “one- and two-day inconsistencies,” which petitioner “promptly corrected”).[4]

Cojocari’s uncertainty about his dates of hospital discharge has little bearing on the reliability of his broader narrative. There seem to be no real doubts about whether Cojocari 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. Cojocari 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 truthfulness of his testimony about persecution for his political activities.

The immigration judge also found great significance in small variations in Cojocari’s descriptions of the abuse he suffered at the hands of Moldovan authorities. Regarding the first beating on June 23, 2007, Cojocari testified that a detective’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 suffered “injuries caused by traumatic action with blunt objects.” credibility determination.’ . . . As we have repeatedly held, `minor discrepancies in dates that . . . cannot be viewed as attempts by the applicant to enhance his claims of persecution have no bearing on credibility.'”) (citations omitted). Similarly, in describing his August 28, 2009 interrogation, Cojocari testified that a detective struck his hand with a baton. In his written statements he indicated more generally that police struck him with their fists, feet, and batons, without specifying 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 hearing stage. The judge’s approach to this case would require applicants to make sure that each written account of their personal histories is exhaustive, on pain of being disbelieved and returned to their home countries of persecution.

We doubt that busy immigration officials charged with reviewing asylum applications and attachments would welcome 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 inconsistencies between petitioner’s statements and medical report that could have been explained by the impact of petitioner’s injuries, 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 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 inconsistency between two translated medical certificates relating to Cojocari’s October 2009 treatment. A certificate that Cojocari submitted with his asylum application said that he suffered a dislocated right shoulder and bruises on his right arm. Another certificate said that Cojocari suffered a closed fracture of the “radial bone” in his right arm along with “multiple hematomas” (i.e., bruises).

The difference between these descriptions seems too slender a reed on which to rest an adverse credibility finding. For all we know, the discrepancy may be attributable to translation errors. The two certificates were translated from handwritten physicians’ records by different translators at different times. Cojocari certainly cannot be faulted for any mistakes in translation. See Kueviakoe v. U.S. Attorney General, 567 F.3d 1301, 1305 (11th Cir. 2009) (rejecting as “wholly immaterial” a discrepancy between petitioner’s live testimony about a “car” and his written statement about a “truck,” where petitioner’s words were translated, “suggesting that he was not the one making the word choice”). Moreover, a third certificate—prepared by the same translator who had noted Cojocari’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 neither the judge nor the government confronted him about the possible inconsistency between two of the medical certificates. There is no reason to believe that Cojocari fabricated either 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 finding. However, two aspects of Cojocari’s case (both of which the Board cited) give us pause.

First, Cojocari has offered some shifting explanations concerning his enrollment at the Academy of Economic Studies. In his asylum application, he said that he attended the academy 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 academic 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, Cojocari offered an explanation: (1) he last studied at the academy in February; (2) he went on academic leave in May; (3) he requested a certificate in August and was given a receipt for his request; and (4) he finally obtained the certificate in October. 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 affidavit 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, however, 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 affidavit 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 Cojocari’s varying accounts of his university enrollment status and his October 2009 medical care weigh against the credibility of his testimony about his persecution. A reasonable factfinder 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 issue 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 took him to hospital but later testified that he traveled by ambulance, 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 below, does there seem to be any reason to believe the hospital records concerning Cojocari’s injuries and treatment were fabricated.

Even if the varying accounts of Cojocari’s enrollment status and October 2009 medical care might have allowed a reasonable 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 supported 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 reasons for discounting petitioner’s testimony, petitioner’s inconsistent statements about timing of visa and passport applications were “not independently sufficient to support a general finding of incredibility”); Kadia, 501 F.3d at 821 (where various inconsistencies could have led judge to conclude that petitioner lied, remand was still necessary because “judge made a number of mistakes, uncorrected by the Board,” and reviewing court could not be confident that “had he not made those mistakes he still would have disbelieved the petitioner”); Adekpe v. Gonzales, 480 F.3d 525, 531-32 (7th Cir. 2007) (where majority of discrepancies on which judge relied were immaterial but two discrepancies were arguably important, remand was still necessary because adverse credibility determination “relied in such large part on unimportant and explicable 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 incomplete or improperly excluded evidence, reviewing court did not “defer to [judge’s] credibility determination on . . . remaining 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 entitled 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 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 burden 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 testimony.” 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 applied for asylum, Cojocari had submitted a medical certificate detailing his October 2009 injuries. In advance of his first merits hearing in November 2013, he submitted additional certificates pertaining to his treatment following his June 2007 arrest 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 documents 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 November 2009 hospital discharge date—Cojocari obtained an additional record that said he was “under ambulatory treatment” 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 Ukraine, and then flew from Ukraine to the United States on November 6.

We do not see why Cojocari should be penalized for complying with his burden under the REAL ID Act to provide corroborating 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 argument 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 Moldova, but Professor Kotler could not answer that question directly, and the government made no further attempt to disprove 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 review, government counsel remarked, “I’m not a document expert.”[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. 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 political 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 arrests 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 official 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 subject of their government’s persecution of political dissidents”).

Finally, the immigration judge wrote that two letters by Cojocari’s Moldovan attorney, which (the judge acknowledged) “concern the mistreatment [Cojocari] suffered during his April 2009 detention and do not contradict [his] testimony,” are nevertheless insufficient supporting evidence because (1) the letters are dated as of October 2013 and (2) Cojocari did not supplement the letters with a copy of the complaint that his attorney filed with the general prosecutor’s office. 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 corroboration requirement reasonably and to refrain from “`could have-should have’ speculation about what evidence the applicant could have brought in a text-book environment.” 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 Vladimir 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 Moldova’s political system as unstable. He noted that Cojocari’s 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 “superficial 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 Moldova[n] society.”

According to Kotler’s report, Cojocari would likely face “persecution, including physical abuse, intimidation and arbitrary detention, on the account of his political opinion, if returned 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 person” who has lived in the United States. The government introduced no expert to rebut Kotler’s testimony and offered little 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 evidence,” 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 reports warn of police brutality and “[i]mpunity for torture and inhuman or degrading treatment.” Both reports describe government corruption as the “most significant human rights problem in the country.” The 2012 report cites police torture and mistreatment of detainees as a “second major area of concern,” 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 Cojocari’s nine-day detention and subsequent flight to Gura Galbenei.

The immigration judge brushed aside these stark warnings 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 Moldova 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 significant problems in the country).

III. Conclusion

We do not often see a timely asylum case where the applicant is a citizen of a country infamous for corruption and political oppression and presents a broadly consistent narrative and substantial corroboration. Yet Cojocari has done just that. Granted, his testimony includes a handful of minor discrepancies, 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 report 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.

[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 withholding of removal, the applicant must show a clear probability of persecution. 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 Cojocari’s credibility, the agency should consider on remand whether Cojocari is entitled to relief under any of the three theories he has advanced.

[2] Citing Garrovillas v. INS, 156 F.3d 1010 (9th Cir. 1998), Cojocari suggests 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 evidence 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 footnote two findings that did not support the judge’s credibility determination. 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 “conducted 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”).

[3] Both Kadia and Dong Gao analyzed asylum claims filed before the REAL ID Act took effect, but nothing about the Act abrogated the guidance we draw from them. On the contrary, Kadia observed that while the REAL ID Act (if it applied) would permit the immigration judge to “consider 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”).

[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 applicant’s credibility, the power to consider any inconsistency `is quite distinct from the issue of whether the inconsistencies cited support an adverse

[5] To support its decision dismissing Cojocari’s appeal, the Board specifically 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.

[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 contains doctors’ notes handwritten in Romanian script) was any better evidence, or more useful for present purposes, than the certificates that Cojocari produced. This subject may be explored on remand.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Asylum, Immigration judge's credibility finding, Moldova | Leave a comment

CA7 granted Mexican national’s motion to stay his removal pending appeal as trial counsel failed to adequately prepare him for removal proceeding

CA7 granted alien-citizen of Mexico’s motion to stay his removal pending appeal, where alien alleged that Bd. had erred in failing to grant his motion to reopen removal proceeding based on allegations that his trial counsel had failed to adequately prepare him for removal proceeding by presenting evidence that two of alien’s children spoke only little Spanish and other child had serious medical condition requiring months of physical therapy. Stay of removal pending appeal was appropriate since: (1) Board had failed to adequately explain its observation that alien’s new evidence would not have altered outcome of removal proceeding; and (2) government had failed to respond to alien’s claim that his removal would cause severe hardship for his family.

An illegal immigrant, Sanchez conceded his removability at a hearing before an immigration judge, but applied for cancellation of removal under 8 U.S.C. 1229b(b), which required that he show that he had been physically present in the U.S. for at least 10 years, that during that period he was a person of good moral character, and that his removal would result in “exceptional and extremely unusual hardship” to his U.S.‐citizen children, ages eight years, six years, and 15 months. His wife also lacks legal‐resident status and Sanchez was the primary breadwinner for his family, having worked at the same pizza restaurant for 18 years. He admitted having been convicted four times in the past 16 years of driving under the influence, and that he had twice violated conditions of his bond. The immigration judge denied relief. The BIA dismissed an appeal. The Seventh Circuit stayed his removal pending review of the BIA’s refusal to reopen in light of new evidence in support of Sanchez’ ineffective‐assistance‐of‐counsel claim, including evidence that his children do not speak Spanish and that one child has a disability.

_____________________________________
RICARDO SANCHEZ, Petitioner,
v.
JEFFERSON B. SESSIONS, III, Attorney General of the United States, Respondent.
No. 17-1673.

United States Court of Appeals, Seventh Circuit.
Submitted May 5, 2017.
Decided May 24, 2017.

Joseph A. O’Connell, for Respondent.

Tiffany Danielle Lipscomb-Jackson, for Petitioner.

Motion to Stay Removal Ordered by the Board of Immigration Appeals. No. A205-830-444.

Before BAUER, POSNER, and FLAUM, Circuit Judges.

POSNER, Circuit Judge.

Before us is a petition for review of the refusal of the Board of Immigration Appeals to reopen its order removing (i.e., deporting) the petitioner, Ricardo Sanchez, and a motion by the petitioner to stay his removal pending a definitive ruling on his petition, and finally a statement by the Department of Justice opposing both the petition and the motion.

An illegal immigrant, Sanchez conceded his removability at a hearing before an immigration judge, but applied for cancellation of removal for nonpermanent residents. See 8 U.S.C. § 1229b(b). To obtain that relief he had to show that he had been physically present in the United States for at least 10 years and that during that period he was a person of good moral character. Id. He also had to establish that his removal would result in “exceptional and extremely unusual hardship” to his U.S.-citizen children. Id. (He has three children, ages eight years, six years, and fifteen months, and lives with them and his wife, who also lacks legal-resident status.)

He testified that he was the primary breadwinner for his family, having worked at the same pizza restaurant for the past eighteen years, and that he feared that his removal would wreak extreme hardship on his children because he wouldn’t be able to provide for his family with the wages that he would earn in Mexico. He admitted having been convicted four times in the past sixteen years of driving under the influence, and that he had twice violated conditions of his bond.

The immigration judge concluded that because of the DUI convictions Sanchez had failed to demonstrate good moral character. The immigration judge also concluded that Sanchez had failed to establish that his removal would result in exceptional and extremely unusual hardship for his children, because he was unable to answer questions about whether his family would follow him to Mexico. And so the immigration judge denied the application for cancellation of removal.

Sanchez appealed to the Board of Immigration Appeals, which, agreeing with the immigration judge, dismissed the appeal. Sanchez filed a timely motion with the Board to reopen his appeal; represented by new counsel, he argued that his original counsel had failed to prepare him for his hearing before the immigration judge. As a result he had failed to testify that his two older children are native English speakers who speak little Spanish; that his third child, who had not yet been born at the time of the removal hearing, has been diagnosed with delayed motor development, requiring three months of weekly physical therapy; and that he had filed tax returns for the preceding several years. Again the Board rejected his appeal, precipitating the petition and motion now before us for resolution.

There is a threshold question whether this court has jurisdiction to review the denial of Sanchez’s motion to reopen, given that we would not have jurisdiction over the underlying request for relief—cancellation of removal. 8 U.S.C. § 1252(a)(2)(B)(i). But we do have jurisdiction to review questions of law. 8 U.S.C. § 1252(a)(2)(D). And in Mata v. Lynch, 135 S. Ct. 2150, 2155 (2015), the Supreme Court said that “whenever the Board [of Immigration Appeals] denies an alien’s statutory motion to reopen a removal case, courts have jurisdiction to review its decision.” And the First Circuit, citing Mata, has asserted jurisdiction over a motion to reopen in a case where the petitioner, as in the present case, was seeking a form of discretionary relief (a waiver under 8 U.S.C. § 1182(h)) from removal that would not otherwise be reviewable by the court. Mazariegos v. Lynch, 790 F.3d 280, 285 (1st Cir. 2015). The government has not responded to Sanchez’s invocation of Mata in the present case.

Assuming as we do that we have jurisdiction to review the Board’s denial of Sanchez’s motion to reopen, we shall exercise it, and order Sanchez’s removal stayed pending our review of the Board’s denial of his motion for reconsideration. The Board noted that Sanchez had attached to his motion new evidence in support of his ineffective-assistance-of-counsel claim, including affidavits from Sanchez and others, information about his U.S.-citizen children, and records pertaining to his criminal history. The Board concluded, but without explanation, that none of the evidence “would have likely altered the outcome of this case with regard to the hardship that would accrue to his children.” Although the Board is not required “to write an exegesis on every contention” of an alien fighting removal, a blanket rejection of all the alien’s evidence precludes meaningful review of its decision. Ji Cheng Ni v. Holder, 715 F.3d 620, 625-30 (7th Cir. 2013).

The government also failed to respond to Sanchez’s argument that he and his family will suffer irreparable harm if he is removed to Mexico before his petition to reopen the removal proceeding is resolved. See Nken v. Holder, 556 U.S. 418, 426 (2009). He is his family’s primary breadwinner, supporting his wife and their three young children. Sanchez expresses concern that he won’t be able to support his family, who are expected to remain in Ohio, with whatever wage he can make in Mexico, and that his youngest son will be unable to continue with the therapy he needs if Sanchez’s wife is forced to go back to work to support the family. He further argues that his removal should not be a priority for the Department of Homeland Security because the decision to remove him was not based on his criminal convictions.

Given the irreparable harm that Sanchez’s removal could inflict on his minor U.S.-citizen children, we have decided to stay the order of removal until we rule on his petition for review of the decision of the Board of Immigration Appeals denying his motion to reopen.

So ordered.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, BIA, Cancellation of Removal, Cancellation of Removal for Non LPRS under INA Section 240A(b)(1), ineffective assistance of counsel, Stay of Removal | Leave a comment

CA7 dismissed for lack of jurisdiction appeal of Board’s order dismissing asylum application on ground that reinstated order of removal precluded asylum

CA7 dismissed for lack of jurisdiction alien’s appeal of Board’s order dismissing his asylum application on ground that alien, as individual subject to reinstated order of removal, had no right to seek asylum relief under applicable federal regulations. Under Delgado-Arteaga, No. 16-1816 (May 12, 2017) alien lacked standing to pursue instant appeal because asylum is form of discretionary relief in which there was no liberty issue at stake. Therefore, Garcia lacked standing to challenge in instant appeal application of regulations preventing him from applying for asylum relief.

Garcia, a Honduran national, came to the U.S. in 2003. He was ordered removed in absentia and eventually departed in 2005. Garcia claims that he encountered persecution upon his return to Honduras because of his unpopular political views— his opposition to deforestation. He was kidnapped and beaten. He returned to the U.S. in 2014 and, after being apprehended, sought asylum. The Chicago Asylum Office issued a positive reasonable fear determination and referred his case to an Immigration Judge for withholding‐only proceedings. Garcia then filed an asylum application. The IJ granted Garcia statutory withholding of removal, stating that she lacked the authority to reconsider the reinstatement of Garcia’s removal order (8 C.F.R. 208.31(e)). The Board of Immigration Appeals rejected Garcia’s argument that he had a statutory right to seek asylum under 8 U.S.C. 1158(a). The BIA reasoned that it lacked authority to declare the controlling regulations in violation of the statute, but also noted that “several federal courts have held a person in reinstatement proceedings is not eligible for and cannot seek asylum.” The Seventh Circuit dismissed an appeal because asylum is a form of discretionary relief, so Garcia lacks standing to challenge the regulations prohibiting him from applying for it.

_____________________________
CIRILO G. GARCIA, Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney General of the United States, Respondent.
No. 16-3234

United States Court of Appeals, Seventh Circuit.
Argued April 20, 2017.
Decided June 8, 2017.

William S. Porterfield, for Petitioner.

Edward F. Malone, for Petitioner.

Carmel A. Morgan, for Respondent.

Keren Zwick, for Petitioner.

Tim Ramnitz, for Respondent.

Rebecca Ann Sharpless, for Amicus Curiae.

Petition for Review of an Order of the Board of Immigration Appeals, No. A096-180-280.

Before MANION and ROVNER, Circuit Judges, and COLEMAN, District Judge.[*]

MANION, Circuit Judge.

Petitioner Cirilo Garcia is a native citizen of Honduras currently subject to a reinstated order of removal. Federal regulations say that aliens in his position have no right to apply for asylum. Garcia argues that these regulations are inconsistent with the general asylum statute, 8 U.S.C. § 1158(a)(1). However, because asylum is a form of discretionary relief, he lacks standing to challenge the regulations prohibiting him from applying for it. Therefore, we dismiss the petition for lack of jurisdiction.

I. Background.

Garcia is a Honduran national who first came to the United States in 2003. He was ordered removed in absentia on October 24, 2003, and eventually departed in 2005. However, Garcia claims that he encountered persecution upon his return to Honduras because of his unpopular political views— specifically, his opposition to deforestation. Eventually, he was kidnapped and beaten. He chose to return to the United States in 2014 and, after being apprehended by Border Patrol, sought asylum.

Garcia expressed a fear of persecution and torture because of his activism if he returned to Honduras. On June 9, 2014, the Chicago Asylum Office issued a positive reasonable fear determination, finding that Garcia was generally credible and had a reasonable fear of torture. The Office referred his case to an Immigration Judge for withholding-only proceedings. See 8 C.F.R. § 208.31(e) (“If an asylum officer determines that an alien described in this section has a reasonable fear of persecution or torture, the officer shall so inform the alien and issue a Form I-863, Notice of Referral to the Immigration Judge, for full consideration of the request for withholding of removal only.” (emphasis added)). Garcia then filed an asylum application in Immigration Court on September 8, 2014.

On October 29, 2014, the Immigration Judge granted Garcia statutory withholding of removal after finding that he had been persecuted in the past and it was more likely than not that he would be again if he returned to Honduras. The IJ explained that she lacked the authority to reconsider the reinstatement of Garcia’s removal order. Garcia then appealed to the Board of Immigration Appeals, arguing that he has a statutory right to seek asylum under 8 U.S.C. § 1158(a). On July 25, 2016, the Board dismissed his appeal. It explained that it lacked authority to declare the controlling regulations in violation of the statute, but also noted that “several federal courts have held a person in reinstatement proceedings is not eligible for and cannot seek asylum.” This petition followed.

II. Discussion.

The parties presented a straightforward question: may an alien subject to reinstatement of a removal order apply for asylum? The general asylum statute, 8 U.S.C. § 1158(a), says “[a]ny alien who is physically present in the United States or who arrives in the United States, … irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title.” Garcia contends that this language grants him the right to apply for asylum. The Attorney General counters with the specific language of 8 U.S.C. § 1231(a)(5), providing that aliens subject to a reinstated order of removal are “not eligible and may not apply for any relief under this chapter.” Since asylum is a form of relief, the Attorney General argues that Section 1235(a)(5) categorically prohibits Garcia’s application.

Three of our sister circuits have agreed with the Attorney General. See Jimenez-Morales v. U.S. Att’y Gen., 821 F.3d 1307, 1310 (11th Cir. 2016); Ramirez-Mejia v. Lynch, 794 F.3d 485, 489-90 (5th Cir. 2015); Herrera-Molina v. Holder, 597 F.3d 128, 139 (2d Cir. 2010).[1] But we need not reach the question, because in light of our recent decision in Delgado-Arteaga v. Sessions, No. 16-1816, 2017 WL 2001659, at *4 (7th Cir. May 12, 2017), it is clear that Garcia has not suffered a sufficient Article III injuryin-fact to confer federal jurisdiction. As we explained in that case, “[a]sylum is a form of discretionary relief in which `there is no liberty interest at stake.'” Id. (quoting Delgado v. Holder, 674 F.3d 759, 765 (7th Cir. 2012)). Thus, denial of the opportunity to apply for asylum does not constitute “an invasion of a legally protected interest.” Id. (quoting Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016)). Garcia lacks standing and this petition must be dismissed.

III. Conclusion.

Because asylum is a form of discretionary relief, Garcia has no legal right to apply for it. Therefore, he lacks standing to challenge the application of regulations preventing him from applying. We dismiss his petition for lack of jurisdiction.

DISMISSED.

[*] The Honorable Sharon Johnson Coleman, of the United States District Court for the Northern District of Illinois, sitting by designation.

[1] The Third and Ninth Circuits reached the same conclusion, but after affording the regulations deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Cazun v. Att’y Gen., 856 F.3d 249, 261 (3d Cir. 2017); Perez-Guzman v. Lynch, 835 F.3d 1066, 1081-82 (9th Cir. 2016).

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Asylum, reinstated order of removal, Standing | Leave a comment

CA7 dismissed application for withholding of removal for lack of jurisdiction, general fear of crime and extortion activity arising out of gang’s actions not enough

CA7 lacked jurisdiction to review alien’s appeal of Board Order denying his application for withholding of removal. Lopez admitted that he was removable based on his prior conviction on drug offense, and he did nor establish valid claim for withholding of removal where: (1) he claimed that return to El Salvador would subject him to persecution because local gang had previously extorted his business for money based on fact that he was wealthy businessman; (2) Lopez failed to establish membership in recognized social group, where he shared no characteristic with his proposed social group other than his wealth; and (3) he had only general fear of crime and extortion activity arising out of gang’s actions. Ct. further noted that regardless of resolution of alien’s issues on appeal, Board’s order would still stand.

Lopez, a citizen of El Salvador, entered the U.S. without inspection around 1996. In 1997, he was convicted of felony possession of marijuana. In 2015, DHS charged Lopez as removable as an alien present in the U.S. without being admitted or paroled, 8 U.S.C. 1182(a)(6)(A)(i); and as an alien convicted under a controlled substance law, 8 U.S.C. 1182(a)(2)(A)(i)(II). Lopez sought asylum and withholding of removal, alleging extortion by Salvadoran gangs. The IJ denied Lopez’s application because Lopez had not filed his asylum application within one year of his last entry; his lack of knowledge about the process did not constitute changed or extraordinary circumstances. The IJ held that Lopez’s fear of persecution was “[n]either objectively reasonable [n]or on account of any of the statutorily enumerated grounds,” as there was no evidence that any future mistreatment would be on account of Lopez’s race, religion, nationality, political opinion, or social group membership. The BIA dismissed an appeal, rejecting an argument that the gang would target Lopez based on its perception of him as a wealthy business owner who failed to comply with its demands. The Seventh Circuit dismissed an appeal for lack of jurisdiction. Lopez failed to establish that his life or freedom would be threatened based on a protected ground.

_____________________________________________
RENE A. LOPEZ, Petitioner,
v.
JEFFERSON B. SESSIONS, III, Attorney General of the United States, Respondent.
No. 17-1047.

United States Court of Appeals, Seventh Circuit.
Argued June 2, 2017.
Decided June 13, 2017.

Lance L. Jolley, for Respondent.

Colette Jabes Winston, OIL, for Respondent.

Alexander E. Budzenski, for Petitioner.

Petition for Review of an Order of the Board of Immigration Appeals, No. A208-149-697.

Before FLAUM, EASTERBROOK, and KANNE, Circuit Judges.

FLAUM, Circuit Judge.

Rene Alonzo Lopez, a.k.a. Luis Fuentes Alonso, petitions for review of the denial of his application for withholding of removal. We dismiss the petition for lack of jurisdiction.

I. Background.

Lopez is a native and citizen of El Salvador who first entered the United States without inspection in or around 1996. In 1997, he was convicted of felony possession of marijuana in violation of North Carolina General Statute § 90-95(d)(4).

In 2015, the Department of Homeland Security commenced removal proceedings against Lopez, and filed a Notice to Appear with the immigration court charging that he was removable on two grounds: (1) as an alien present in the United States without being admitted or paroled, see 8 U.S.C. § 1182(a)(6)(A)(i); and (2) as an alien convicted of a controlled substance law, see 8 U.S.C. § 1182(a)(2)(A)(i)(II). Lopez admitted the allegations in the Notice to Appear; and, after the immigration judge sustained the removal charges, Lopez filed an application for asylum and withholding of removal.

Lopez testified before the immigration judge that in 2007, Lopez and his cousin decided to form an agricultural business making feed for livestock in El Salvador. Lopez sent money from the United States as an investment and in order to rent space. He returned to El Salvador in 2011 or 2012 to expand the business to another location in a different village. Lopez stated that approximately three months after the new branch opened, he received a cell phone from a child, and the local leader of the Mara Salvatrucha (“MS-13”) gang called to “start charging rent.” (Apparently the area in which the new branch was located was gang-controlled.) The gang leader told Lopez, “[Y]ou already know what happens to people who don’t pay.” Lopez understood this to mean that the gang would kill, injure, or kidnap someone if Lopez didn’t pay the “rent.”

Lopez initially complied with the gang’s demands, depositing thirty dollars per week into a specified bank account; but after a month or a month and a half, he had to close the business. He explained to the immigration judge that once people learn that a gang controls a business, the business suffers reputational harm and loses standing in the community. Lopez then returned to the United States. Approximately six months later, Lopez sent money to his nephew, who was being pressured in El Salvador to join a gang, to help him travel to the United States.

MS-13 has never harmed Lopez’s family in El Salvador. Additionally, Lopez explained that he had not applied for asylum earlier because he had not known that he could.

A. Immigration judge’s decision

On May 19, 2016, the immigration judge denied Lopez’s application for asylum and withholding of removal. Lopez had not filed his asylum application within one year of his last entry in 2012, as is required under 8 U.S.C. § 1158(a)(2)(B); and the immigration judge found that Lopez’s lack of knowledge about the asylum application process did not constitute changed or extraordinary circumstances excusing his failure to timely file. Lopez was thus statutorily ineligible for asylum.

In denying withholding of removal, the immigration judge found that Lopez’s fear of persecution by MS-13 was “[n]either objectively reasonable [n]or on account of any of the statutorily enumerated grounds,” as the record did not support the conclusion that any future mistreatment by MS-13 would be on account of Lopez’s race, religion, nationality, political opinion, or social group membership. The immigration judge observed that neither “(1) individuals who oppose gang and other criminal activities due to their personal (e.g., religious and/or moral) beliefs,” nor “(2) individuals who have lived in the United States for many years and who are perceived by drug cartels, criminal organizations, and gangs to have money upon their return” comprised sufficiently particular groups to be cognizable social groups for purposes of withholding of removal. The immigration judge also found “no evidence that gang members would be concerned with any characteristic of their victims other than their wealth.”

B. Board of Immigration Appeals’s decision

On June 16, 2016, Lopez appealed the immigration judge’s denial of withholding of removal to the Board of Immigration Appeals (“Board”), claiming that MS-13 would target Lopez based on its perception of him as a “wealthy business owner who failed to comply with [the gang’s] demands for rent,” and submitting that the government of El Salvador is unable to control the MS-13 gang or protect its victims. He requested that the Board either grant him withholding of removal or remand his case so that he could introduce additional evidence.

On December 8, 2016, the Board dismissed Lopez’s appeal, agreeing with the immigration judge that Lopez had not established that it was more likely than not that his life or freedom would be threatened based on a protected ground. The Board explained in relevant part that, “[a]lthough wealth can form a basis of a particular social group if it is combined with other `distinguishing markers,’ no evidence was presented that the gang members in this case would be concerned with any character[istic] other than wealth.” The Board added that a “general fear of crime, extortion, or violence,” and Lopez’s actions in helping his nephew escape El Salvador, likewise were not bases for withholding of removal, and rejected Lopez’s claim that the Salvadoran government is unable or unwilling to control MS-13. Finally, the Board denied Lopez’s request for remand to present additional evidence, explaining that he “did not submit any evidence, specify the evidence that would be presented, or explain why the new evidence could have been presented in the proceedings before the Immigration Judge.”

This petition followed.

II. Discussion.

Because Lopez was found removable based on his controlled-substance conviction and did not challenge this finding before the Board or this Court, the criminal alien bar of 8 U.S.C. § 1252(a)(2)(C) applies. See, e.g., Gutierrez v. Lynch, 834 F.3d 800, 804 (7th Cir. 2016); Aguilar-Mejia v. Holder, 616 F.3d 699, 703 (7th Cir. 2010) (“Congress has stripped courts of appeals of their jurisdiction to review most issues related to removal orders for aliens convicted of certain crimes, including controlled-substance offenses. . . .”) (citations omitted). Although we thus generally lack jurisdiction to review Lopez’s final order of removal, we retain jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to review (de novo) questions of law and constitutional claims. See, e.g., Isunza v. Lynch, 809 F.3d 971, 973 (7th Cir. 2016); Antia-Perea v. Holder, 768 F.3d 647, 658-59 (7th Cir. 2014) (citation omitted). We likewise review de novo questions concerning our jurisdiction. E.g., Delgado v. Holder, 674 F.3d 759, 765 (7th Cir. 2012) (citation omitted).

Withholding of removal requires the petitioner to establish that it is more likely than not that he would be persecuted in the country of removal “because of [his] race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A); see also Sarhan v. Holder, 658 F.3d 649, 653 (7th Cir. 2011) (citation omitted). The inquiry focuses on “whether the danger flows from an ongoing violent struggle affecting the population in a relatively undifferentiated way or if danger exists on account of a protected ground.” Tapiero de Orejuela v. Gonzales, 423 F.3d 666, 672 (7th Cir. 2005) (quoting Ahmed v. Ashcroft, 348 F.3d 611, 619 (7th Cir. 2003)). Lopez raises two legal challenges on appeal: (1) that individuals perceived to be wealthy business owners, or former members of that group who failed to comply with extortion demands, are both cognizable and particular social groups under existing precedent; and (2) that he established, and the Board failed to consider, that the Salvadoran government is unable or unwilling to control MS-13.[1]

The government responds, however, that neither of these arguments invokes our jurisdiction because Lopez has not challenged the Board’s dispositive holding on nexus—that is, that Lopez failed to establish a likelihood of persecution in El Salvador based on membership in a protected group. 8 U.S.C. § 1231(b)(3)(A); see also Rivera v Lynch, 845 F.3d 864, 866 (7th Cir. 2017); Shaikh v. Holder, 702 F.3d 897, 902 (7th Cir. 2012). Thus, the government reasons, even assuming Lopez could prevail on either or both of his arguments, the agency’s denial of withholding of removal would still stand.

Lopez claims that the government is misreading the immigration judge’s and Board’s decisions,[2] which, according to him, focused on the requisite particularity of a social group, and not on nexus per se. The government relies on: (1) the Board’s statement that, “[a]lthough wealth can form a basis of a particular social group if it is combined with other `distinguishing markers,’ no evidence was presented that the gang members in this case would be concerned with any character[istic] other than wealth”; and (2) the immigration judge’s finding that, “[i]n this case, . . . the danger to the respondent of robbery or extortion by gangs or other criminal elements is shared by all members of [Salvadoran] society who have or are perceived to have wealth, and there is no evidence that the risk faced by the respondent is distinct because of the time he lived in the United States.” While it’s true that both statements come from the agency’s analyses with respect to social groups, crucially, they both center on wealth—and only wealth—as the pertinent marker linked to persecution by MS-13. And as “wealth, standing alone, is not an immutable characteristic [and thus may not be the primary characteristic of a cognizable group],” Dominguez-Pulido v. Lynch, 821 F.3d 837, 845 (7th Cir. 2016) (citing Tapiero, 423 F.3d at 672), both the immigration judge and Board did make dispositive, no-nexus findings.

Lopez alternatively argues that, to the extent the Board addressed the nexus element, the Board failed to consider evidence, raising an issue of reviewable legal error. He claims that because he experienced extortion and threats from MS-13 as a consequence of his business ownership, a conclusion of no nexus “ignores [his own] credible testimony.” His argument misses the point. It’s true that the immigration judge found Lopez generally credible, and observed that “there is some support” for Lopez’s fears of MS-13 given the gang’s proclivity toward violence. However, both the immigration judge and Board concluded that it wasn’t Lopez’s business ownership, or his non-compliance with the gang’s demands, that mattered for purposes of the withholding analysis. It was simply his (perceived) wealth. See generally In re V—-T—-S—-, 21 I. & N. Dec. 792, 792 (BIA 1997) (holding that an applicant’s wealth, in the absence of evidence to suggest other motivations, will not support a finding of persecution within the meaning of the Immigration and Nationality Act). Lopez thus failed to establish that his life or freedom would be threatened based on a protected ground.

“For [§ 1252(a)(2)(D)] review to be permissible, . . . the legal conclusion must make a difference, as otherwise the court would be rendering an advisory opinion.” Jankovic v. Lynch, 811 F.3d 265, 266 (7th Cir. 2016). As the agency’s (no-)nexus finding is dispositive of the decision on withholding of removal, we need not and do not consider either of Lopez’s arguments as to his proposed social groups or the ability or willingness of the Salvadoran government to control MS-13. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach.”) (citations omitted); Lozano-Zuniga v. Lynch, 832 F.3d 822, 828 (7th Cir. 2016) (finding it unnecessary to determine whether a given group was cognizable under the Immigration and Nationality Act given the immigration court’s finding that petitioner “failed to establish that there is a clear probability that he would be subject to future danger because of his membership in this group”).

III. Conclusion.

For the foregoing reasons, the petition for review of the Board’s decision is DISMISSED for lack of jurisdiction.

[1] As to the second issue, Lopez alternatively argues that even if the Board did consider this evidence, this Court should revisit our conclusion that 8 U.S.C. § 1252(a)(2)(D)’s preservation of jurisdiction does not extend to such issues of mixed law and fact. See Adame v. Holder, 777 F.3d 390, 391 (7th Cir. 2015) (Hamilton, J., concurring in denial of petition for rehearing en banc). We decline to do so, since, as the following analysis makes clear, there would be “no reasonable prospect of changing the outcome of [the] petition for judicial review.” Id.

[2] Where the Board both adopts and supplements the immigration judge’s decision, both orders are subject to review by this Court. E.g., Halim v. Holder, 755 F.3d 506, 511 (7th Cir. 2014) (citations omitted).

Posted in 7th Circuit, 7th Circuit Cases- Aliens, withholding of removal, withholding of removal; lack of jurisdiction | Leave a comment

CA7 lacked jurisdiction to review asylum denial filed well beyond applicable one-year limitation period and no material changes or extraordinary circumstance

CA7 lacked jurisdiction to consider alien’s appeal of Bd.’s denial of his asylum application, where alien had filed said application well beyond applicable one-year limitation period. While alien argued that his delay was excused because there was evidence of material change in circumstances in Mongolia to justify delay, said argument was only factual in nature, which did not fall within section 1252’s exception to instant jurisdictional bar. CA7 also rejected alien’s challenge to Bd.’s denial of his application for withdrawal of removal based on alien’s claim that his membership in Mongolian Democratic Party subjected him to persecution, where, although alien presented evidence of physical abuse by members of government, alien had failed to show that BIA’s finding that said evidence did not constitute persecution lacked support in record.

Tsegmed, a citizen of Mongolia, overstayed a nonimmigrant visa and has lived in the U.S. since 2004. In 2008, after his second DUI arrest, the government placed him in removal proceedings. He sought asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Tsemed had been a high-ranking officer in the Mongolian military and had knowledge of the internal workings of the governing Communist regime. He and his friend, Bayarbat, became involved with the pro-democracy movement and were arrested twice. Bayarbat’s family was killed; Tsegmed believes the government caused the deaths of his son and his brother and that agents were still looking for him. The IJ denied relief; the BIA affirmed. The Seventh Circuit denied a petition for review, stating that it lacked jurisdiction to review the denial of his asylum application because Tsegmed had missed the filing deadline and had not established material changes or extraordinary circumstances. The evidence did not compel the conclusion that he is eligible for withholding or CAT relief. Tsegmed had a subjectively genuine fear of persecution is not objectively reasonable. The Democratic Party controls the presidency and a plurality of the Mongolian parliament. The State Department reports that there are no official political prisoners or detainees in Mongolia. TSEGMED v. Sessions, Court of Appeals, 7th Circuit 2017

_______________________________
OTGONBAATAR TSEGMED, Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney General of the United States, Respondent.
No. 16-1036.

United States Court of Appeals, Seventh Circuit.
Argued February 8, 2017.
Decided June 15, 2017.

Paul Fiorino, Zoe J. Heller, Stratton Christopher Strand, OIL, for Respondent.

Isuf Kola, for Petitioner.

Petition for Review of an Order of the Board of Immigration Appeals. No. A089-272-651.

Before WOOD, Chief Judge, FLAUM, Circuit Judge, and CONLEY, District Judge.[*]

WOOD, Chief Judge.

Otgonbaatar Tsegmed, a citizen of Mongolia, overstayed a non-immigrant visa and has been living in the United States since 2004. He came to the attention of the Department of Homeland Security in 2008, after his second arrest for Driving Under the Influence in Illinois. The government placed him in removal proceedings. He conceded that he was removable, but he filed an application with the immigration court in July 2008 seeking asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The Immigration Judge (IJ) denied his application and ordered him removed to Mongolia; the Board of Immigration Appeals (BIA) affirmed. Tsegmed now challenges those decisions. Because we lack jurisdiction to review the denial of his asylum application, and the evidence does not compel the conclusion that he is eligible for withholding or relief under the CAT, we deny his petition for review.

I

Tsegmed is a member of the Taij ethnic group, which is reportedly descended from nobility and still privileged in Mongolia. He attended school in the Soviet Union and then became a high-ranking officer in the Mongolian military. In that position, he worked on highly-classified assignments and had knowledge of the internal workings of the governing Communist regime. But he and his close friend, Bayarbat, eventually became involved with the pro-democracy movement in Mongolia while the country was ruled by Mongolia’s Communist Party. The police arrested Tsegmed and Bayarbat in 1989 while the two were distributing pro-democracy pamphlets. After the arrest, the police held Tsegmed for 72 hours, punched him in the face three times, called him names, and gave him no food. The police arrested him again in 1994, along with Bayarbat, during an election protest organized by the Democratic Party.

In 1999, Tsegmed’s young son died a tragic and mysterious death, for which he blames the Mongolian government. The ambulance that Tsegmed called in the midst of his son’s medical emergency never arrived, and, following his son’s death, an unidentified person called and mocked Tsegmed, telling him that such things happened to members of the Democratic Party. In 2001, Bayarbat’s family was murdered. The Communist Party framed Bayarbat for the murders and arrested him; he eventually died in prison. Around this time, the police brought Tsegmed in for questioning, ostensibly related to Bayarbat’s arrest on murder charges. They instead interrogated him about political information that they believed Bayarbat’s father had given him. The police detained him that time for 72 hours, during which they punched him in the face between four and six times. Although Tsegmed relocated to the United States in 2004, Tsegmed’s brother, who remained in Mongolia, told him in 2007 that unidentified people (presumably communists) had come to him looking for his “dirty brother.” A month after reporting this to Tsegmed, his brother died. The death was ruled a heart attack, but Tsegmed believes it may have been caused by something else because his brother was in good physical shape.

Tsegmed provided this information in the Form 1-589 Application for Asylum and for Withholding of Removal he filed in July 2008, and in his testimony at two immigration court hearings conducted in December 2013 and January 2014. The IJ found Tsegmed credible, but the judge noted that much of his testimony lacked corroboration and therefore deserved less weight. The IJ denied relief in July 2014, and the BIA affirmed in December 2015. They rejected Tsegmed’s asylum application because he did not meet any exception to the one year filing deadline. See 8 U.S.C. § 1158(a)(2)(B). The IJ, seconded by the Board, denied withholding of removal and protection under CAT on the merits, finding that the harm that Tsegmed alleged on account of his membership in the Democratic Party was not serious enough to qualify as “persecution,” and that Tsegmed had failed to establish that it was more likely than not that he would be tortured upon return. Tsegmed has petitioned us for review of the BIA’s decision.

Because the IJ denied the application and the BIA affirmed with a written opinion, we review both decisions. N.L.A. v. Holder, 744 F.3d 425, 430 (7th Cir. 2014). We consider legal conclusions de novo, and we review factual issues under the substantial evidence standard, “which requires us to assess whether the Board’s determination is supported by reasonable, substantial, and probative evidence on the record considered as a whole and to reverse only if the evidence compels a contrary conclusion.” Abdoulaye v. Holder, 721 F.3d 485, 490 (7th Cir. 2013) (internal citations omitted).

II

A

Although Tsegmed challenges the BIA’s and IJ’s determinations that he did not meet any exception to the one-year filing deadline for asylum, we lack jurisdiction to reconsider the Board’s finding. The statute requires someone seeking asylum to apply for asylum within one year after entering the United States. 8 U.S.C. § 1158(a)(2)(B). That rule can be relaxed if the applicant can demonstrate “either the existence of changed circumstances which materially affect the applicant’s eligibility for asylum or extraordinary circumstances relating to the delay in filing an application within [one year].” § 1158(a)(2)(D). Section 1158(a)(3) further specifies that no court has jurisdiction to review the determination about the timeliness of the application or whether changed or extraordinary circumstances excuse a late filing. Nonetheless, we retain the authority to review “constitutional claims or questions of law related to the timely filing of an asylum application.” Bitsin v. Holder, 719 F.3d 619, 625 (7th Cir. 2013) (citing 8 U.S.C. § 1252(a)(2)(D)). “We have interpreted this exception to apply `to strictly legal controversies,’ by which we `mean[ ] that the parties contest a legal issue, and that the alien wins if the law provides what he says it does and loses if it provides what the agency says it does.'” Id. at 625-26 (quoting Restrepo v. Holder, 610 F.3d 962, 965 (7th Cir. 2010)).

Tsegmed contends that he has shown just such an error of law, because (in his view) the evidence of a material change of circumstances in Mongolia is so strong that a contrary conclusion is inconsistent with the statute. But we rejected exactly this method of showing “material changes” in Viracacha v. Mukasey, 518 F.3d 511, 514-15 (7th Cir. 2008), and “extraordinary circumstances” in Bitsin, 719 F.3d at 626. Making a determination about either “material changes” or “extraordinary circumstances” requires this court only “to apply a legal standard to a given set of facts.” Bitsin, 719 F.3d at 626. This “does not raise a question of law, and [] therefore does not fall within § 1252’s exception to the jurisdictional bar of § 1158.” Id. at 627. Because Tsegmed does not present any constitutional claims or questions of law, we lack jurisdiction to consider the denial of his asylum application.

B

Two other forms of relief are unaffected by the one-year rule: withholding of removal, and relief under the CAT. Tsegmed seeks both.

An alien is entitled to withholding of removal if his “life or freedom would be threatened in [the home] country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A); Bitsin, 719 F.3d at 628. “A threat to life or freedom is synonymous with persecution, which this Circuit defines as `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 deprivation if the resulting conditions are sufficiently severe.'” Halim v. Holder, 755 F.3d 506, 511-12 (7th Cir. 2014) (quoting Yi Xian Chen v. Holder, 705 F.3d 624, 629 (7th Cir. 2013)). “Persecution involves, we suggest, the use of significant physical force against a person’s body, or the infliction of comparable physical harm without direct application of force (locking a person in a cell and starving him would be an example), or nonphysical harm of equal gravity” such as refusing to allow a person to practice his religion or a credible threat to inflict grave physical harm. Stanojkova v. Holder, 645 F.3d 943, 948 (7th Cir. 2011).

If an applicant establishes that he has suffered past persecution, he is entitled to a rebuttable presumption of future persecution on the same basis. 8 C.F.R. § 1208.16(b)(1). If he cannot establish past persecution, he still may be entitled to relief if he can demonstrate a “clear probability” of future persecution, meaning that it is more likely than not that he would be subject to persecution if he were returned. Halim, 755 F.3d at 512. The “clear probability” standard for withholding is more stringent than the “well-founded fear of future persecution” standard for asylum applications. Prela v. Ashcroft, 394 F.3d 515, 519 (7th Cir. 2005).

Tsegmed argues that his past harms are properly characterized as persecution on account of his Taij ethnicity, his membership in the Democratic Party, and his unique position in the military. He presents no arguments or evidence related to his ethnicity or his military position, however, and so we cannot rely on either of those grounds. This leaves his argument that he was persecuted on account of his membership in the Democratic Party (that is, on the basis of his political opinion or membership in a particular social group).

If we were reviewing his petition as a matter of first impression, we might have come to a different conclusion. But we may reverse the BIA’s determination only if we are compelled by the evidence to conclude that the agency erred. Dandan v. Ashcroft, 339 F.3d 567, 572 (7th Cir. 2003). The IJ and BIA found insufficient evidence to support the contention that Tsegmed’s son and brother were murdered in 1999 and 2007, respectively. They also ruled that Tsegmed could not rely on “derivative persecution” of Bayarbat, as he had not alleged that Bayarbat had been framed in order to persecute Tsegmed. See Zhou Ji Ni v. Holder, 635 F.3d 1014, 1018 (7th Cir. 2011). While Tsegmed’s story is a deeply troubling one, even with these qualifications, we cannot say that the Board’s findings were tainted by legal error or a lack of support in the record.

Tsegmed’s petition describes events that are reminiscent of other cases in which we have affirmed findings of past persecution. See, e.g., Vaduva v. INS, 131 F.3d 689, 690 (7th Cir. 1997) (finding that the BIA reasonably concluded that the petitioner suffered past persecution based on being beaten up by strangers warning him about political activity, but affirming denial of asylum based on the lack of a well-founded fear of future persecution). His claims of arrest, assault, and detention without food on account of his political party membership and activity depict more than “mere” harassment (a disturbingly vague concept). See Stanojkova, 645 F.3d at 948. But we also have affirmed findings that similar physical harms did not warrant a finding of past persecution. See, e.g., Sirbu v. Holder, 718 F.3d 655, 659 n.3 (7th Cir. 2013) (listing cases affirming findings of no past persecution). As we have previously recognized, our past-persecution cases are “all over the lot.” Stanojkova, 645 F.3d at 947. That is why both Tsegmed and the government “are able to cite cases that support their position; [the citations] cancel each other out.” Id. “In the close cases, where a reasonable trier of fact could make a decision either way, we should be able to defer to the judgment of the immigration judges and the Board.” Sirbu, 718 F.3d at 660. That principle guides our decision to accept the Board’s conclusion that Tsegmed did not manage to show past persecution.

Because he has not established past persecution, Tsegmed has the burden of demonstrating a clear probability that he will be persecuted in the future. Although the BIA did not reach this issue, the IJ found that he had not met his burden. The IJ concluded that although Tsegmed had a subjectively genuine fear of persecution if he is sent back to Mongolia, that fear is not objectively reasonable. The Democratic Party controls the presidency and a plurality of the Mongolian parliament. The U.S. State Department reports that there are no official political prisoners or detainees in Mongolia. U.S. Dep’t of State, Mongolia 2015 Human Rights Report, https://www.state.gov/documents/organization/252995.pdf. The IJ noted that there was no evidence that the Communist Party retains the ability to threaten Tsegmed, and that there was insufficient evidence that the party would be motivated to target an opponent who had not been politically active for a long time.

Nothing in the record requires us to conclude that Tsegmed faces a clear probability of future persecution. While Tsegmed argues that he had a “well-founded fear of future persecution” and that he faces a “reasonable possibility of future persecution” if he returns, that is not what he needs to show for withholding of removal. See Prela, 394 F.3d at 519. Showing a “well-founded fear” or “reasonable possibility” of persecution is a far cry from establishing that future persecution is “more likely than not.”

C

Finally, Tsegmed urges that he has demonstrated that he qualifies for relief under the CAT, which requires an applicant to show that it is more likely than not that he will be tortured if returned to the country in question. 8 C.F.R. § 1208.16; Bitsin, 719 F.3d at 631. Torture is defined as “any act by which severe pain or suffering[ ] . . . is intentionally inflicted on a person . . . when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1).

But Tsegmed presents no arguments in support of this claim. He says only that “the evidence overwhelmingly established that he met his burden for withholding of removal and CAT as well.” This is not sufficient to preserve his claim for our review. Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir. 2012). But even if it were, the evidence we already have reviewed shows that the Board was entitled to find that Tsegmed has not shown that it is more likely than not he will be tortured if returned to Mongolia.

His petition for review is DENIED.

[*] Of the Western District of Wisconsin, sitting by designation.

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