Gonchigsharav Nadmid v. Eric Holder, Jr. ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-1477
GONCHIGSHARAV NADMID,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General
of the United States,
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A097-701-886
____________________
ARGUED NOVEMBER 18, 2014 — DECIDED APRIL 21, 2015
____________________
Before BAUER, MANION, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Gonchigsharav Nadmid, a Mon-
golian businessman, petitions for review of the denial of his
application for asylum and withholding from removal based
on (1) his political opinion denouncing two prominent and
corrupt politicians by name at a public rally and (2) his
membership in the social group of business owners who
seek to expose and end corruption between politicians and
2 No. 14-1477
businesses. Because the adverse credibility determination of
the immigration judge was flawed, we grant the petition and
remand for further proceedings.
I. BACKGROUND
Nadmid, a 57-year-old native and citizen of Mongolia,
came to the United States in 2003 on a visitor’s visa and
overstayed. After being arrested in Pennsylvania for driving
under the influence, he voluntarily departed in 2006 and re-
turned to Mongolia, where he started a business manufac-
turing construction materials.
Nadmid returned to the United States in late 2009, pre-
senting the same visa he had obtained six years earlier. He
was detained at Chicago O’Hare International Airport,
where a Customs and Border Patrol officer, through a Rus-
sian translator, conducted two interviews with him. During
the first interview, Nadmid answered basic biographical
questions, informed the officer that he was coming to the
United States to visit his daughter (who holds a green card),
and answered ”no” when asked if he feared returning to
Mongolia. In a second interview later that day (and after
speaking with his daughter), Nadmid told the officer that, if
returned to Mongolia, he feared being killed by agents from
Oyu Tolgoi (a large, partially government-owned mining
operation in Mongolia), whose demand for $200,000 he had
rebuffed. Nadmid mentioned several instances in which
thugs, including a man named Tsegmid, confronted and
threatened him at his business. A month later an asylum of-
ficer conducted a credible-fear interview, this time through a
Mongolian translator, and determined that Nadmid did have
a credible fear of persecution.
No. 14-1477 3
In an affidavit accompanying his asylum application and
in his testimony at his removal hearing in 2011, Nadmid de-
scribed his political activity in Mongolia and the conse-
quences he faced for speaking out against political corrup-
tion. He recounted that in mid-2009 he participated in an
anti-corruption protest in the capital city of Ulaanbaatar, at
which he spoke out on stage and accused two politicians
from the ruling Mongolian People’s Party of misappropriat-
ing public funds. Five days after the protest, several uniden-
tified men showed up at his business and assaulted him,
knocking him unconscious with a metal rod to his head; af-
terward he had to be hospitalized. Nadmid’s assailants did
not address him directly but he overheard them saying that
he “talks too much shit.” The following month the men re-
turned but Nadmid managed to slip out through the back
door. Several weeks later two different men confronted him
at his business and demanded $200,000, a sum well beyond
Nadmid’s means. Nadmid returned home later that day to
find that his kitchen window had been smashed by two
bricks thrown inside.
A month later Nadmid sought out a reporter to publicize
his continued opposition to governmental corruption and to
show his harassers that he would not be intimidated. Soon
thereafter the newspaper Mongolia Today ran a brief story
profiling Nadmid as a small businessman who denounced
corruption and refused to contribute to the Mongolian Peo-
ple’s Party.
A few weeks after the article was published, Nadmid re-
counted further, he was abducted at his business and taken
to a cemetery. He managed to escape with the help of one of
the assailants, Tsegmid, who had been a business acquaint-
4 No. 14-1477
ance of his in the 1990s. After the incident, Nadmid shut-
tered his business and hid at campsites away from the capi-
tal; he left Mongolia in December. The day after he left, a no-
tice bearing his photo was published in the Ulaanbaatar
Times seeking information on his whereabouts and offering
a reward.
Nadmid supplemented his application with the newspa-
per profile, the published notice seeking his whereabouts, a
medical certificate confirming his post-beating treatment, his
business license, and an excerpt from a report by the United
States Agency for International Development documenting
pervasive and increasing corruption in business and politics
in Mongolia. He also offered the declaration and testimony
of Dr. Alicia Campi, the president of a Mongolian business
consultancy company who holds a Ph.D. in Mongolian stud-
ies and specializes in Mongolian politics, economics, and
human rights. Dr. Campi testified that corruption in Mongo-
lia was widespread, that the two politicians Nadmid had
singled out at the rally were known for corruption and vio-
lent retaliation against opponents, that she had been able to
confirm the authenticity of Nadmid’s identification docu-
ments through contacts in Mongolia, and that the newspaper
article and notice resembled those she had seen in Mongoli-
an newspapers.
The IJ concluded that Nadmid did not qualify for asylum
because he was not credible and did not sufficiently corrobo-
rate his claim. Nadmid testified consistently with his written
affidavit, the IJ acknowledged, but the inconsistencies be-
tween his testimony and the transcripts of his two airport
interviews were “significant problems.” In the airport inter-
views, for instance, Nadmid had portrayed the threats as
No. 14-1477 5
arising from a personal dispute and did not mention speak-
ing at an anticorruption rally. At these interviews, he also
give different dates for the alleged incidents and described
Tsegmid’s role inconsistently. Nadmid, the IJ added, did not
convincingly explain why he overstayed his visa in 2003 or
why his persecutors believed he would have as much as
$200,000 after he returned to Mongolia with such few assets.
Because his testimony was not credible, the IJ determined
that Nadmid needed to submit corroborating evidence. The
IJ gave little weight to the newspapers, which he assumed
had not been identified in the record, or to the medical certif-
icate because it was poorly translated. The IJ also found
Dr. Campi’s testimony reliable but insufficient because she
lacked personal knowledge of Nadmid’s story. In the IJ’s
view, Nadmid should have provided further documentation
of his business activities in Mongolia and affidavits from
friends, family members, or employees who witnessed his
speech at the 2009 rally or the attacks against him.
And even if Nadmid’s testimony were credited, the IJ
added, members of Nadmid’s proposed social group—
“Mongolian business owners who seek to expose and end
political corruption of private businesses”—had nothing in
common except being targeted for persecution, and was
premised on a profession rather than any immutable and
fundamental characteristic. Nor could Nadmid demonstrate
a nexus between a protected ground and the persecution he
suffered because he showed only that his attackers were
“motivated by greed” and sought simply to extort money
from him. Finally the IJ found that Nadmid did not qualify
for withholding of removal or for protection under the Con-
vention Against Torture.
6 No. 14-1477
The Board upheld the IJ’s findings about credibility, cor-
roboration, and CAT, and dismissed Nadmid’s appeal. It did
not consider the IJ’s alternative findings concerning social
group membership or nexus.
II. ANALYSIS
In his petition for review, Nadmid challenges the adverse
credibility finding and specifically the reliability of the air-
port interviews on grounds that he is not fluent in Russian,
as reflected in interview transcripts that reveal significant
inconsistencies and language difficulties.
Although an IJ may consider airport interviews in mak-
ing a credibility determination, they must be reliable, and
may be less so where the asylum applicant’s answers suggest
that translation problems have made it difficult to under-
stand the questions posed to him. Moab v. Gonzales, 500 F.3d
656, 660–61 (7th Cir. 2007); Balogun v. Ashcroft, 374 F.3d 492,
504–05 (7th Cir. 2004). These problems are particularly acute
when the translator does not speak the applicant’s native
language, but instead translates the questions into a lan-
guage in which the applicant is only minimally proficient.
See Ememe v. Ashcroft, 358 F.3d 447, 451–52 (7th Cir. 2004);
Sing v. INS, 292 F.3d 1017, 1022–23 (9th Cir. 2002).
We agree with Nadmid that the IJ incorrectly relied on
the airport interviews to discredit him. First, the IJ mischar-
acterized the record when he stated that Nadmid testified
that he told the Customs and Border Patrol officer that he
“requested a Russian interpreter.” The record does not re-
flect that Nadmid testified to making such a request; he testi-
fied that immigration officers asked him what languages he
spoke and provided a Russian interpreter after he responded
No. 14-1477 7
that he spoke Russian. Second, the IJ concluded that the
transcripts of the airport interviews showed “detailed, co-
herent responses.” But the transcript contains several con-
tradictory statements made in quick succession that suggest
that Nadmid faced a significant language barrier in under-
standing the questions being asked him. 1 Third, the IJ stated
that Nadmid had learned Russian when he had attended a
technical school in Russia for three years. But the IJ did not
1 The transcript shows confusion over the name of the firm ostensi-
bly lending money to Nadmid and whether the firm lent money to
Nadmid or sought merely to extort him:
Q: Who is going to kill you?
A: A private firm lent me a large sum of money and I
have failed to repay the money. Now they have been
threatening me.
Q: What is the name of the firm?
A: The company name is Tsegmid.
…
Q: How much money did you borrow from them?
A: This is the company that takes my money.
Q: You said that they lent you money?
A: They only take money.
…
Q: How do they take your money?
A: They have never taken any money from me, they seek
to take money from me.
…
Q: You told me that you borrowed money from them.
When did you borrow money from them?
A: No it never happened.
…
Q: Who contacts you in the company?
A: Tsegmid is the name of a person, not the company.
Q: Why did you tell me it was the name of a company?
A: My Russian isn’t very good.
8 No. 14-1477
acknowledge that Nadmid attended the technical school
more than 30 years before the airport interviews, that the
classes there were taught both in Russian and through inter-
preters, and that Nadmid stated that he did not use Russian
in his business in Mongolia. Finally, the IJ disregarded
Nadmid’s repeated demurrals that he spoke Russian poor-
ly—at the airport interview itself, at his first appearance in
the immigration court less than two months later, and dur-
ing his testimony at the removal hearing.
The government does not respond to Nadmid’s challenge
to the adverse credibility finding, and instead argues that the
petition must outright be denied because Nadmid failed be-
fore the Board and in this court to contest a separate disposi-
tive issue—the IJ’s ruling that he failed to corroborate his
claim with reasonably available evidence. But the govern-
ment’s first contention, that Nadmid failed to exhaust his
administrative remedies by not raising the corroboration is-
sue before the Board, is incorrect. The Board independently
addressed the issue in its decision, and once the Board ad-
dresses an issue on its own, it is exhausted. See 8 U.S.C.
§ 1252(d)(1); Arobelidze v. Holder, 653 F.3d 513, 516–17
(7th Cir. 2011). The government, however, is correct that
Nadmid has waived the issue by failing to discuss it in his
brief here. See Firishchak v. Holder, 636 F.3d 305, 309 n.2 (7th
Cir. 2011).
Waiver of the corroboration issue, though, does not re-
solve the case in the government’s favor. It is generally true
that an applicant’s failure to comply with an IJ’s request for
corroborating evidence will doom a claim when such evi-
dence is reasonably available. See 8 U.S.C. § 1158(b)(1)(B)(ii);
Raghunathan v. Holder, 604 F.3d 371, 379 (7th Cir. 2010);
No. 14-1477 9
Krishnapillai v. Holder, 563 F.3d 606, 618–19 (7th Cir. 2009).
But an applicant’s testimony alone “may be sufficient to sus-
tain the applicant’s burden without corroboration.” 8 U.S.C.
§ 1158(b)(1)(B)(ii). Thus, if an IJ explicitly premises a demand
for corroborating evidence on an adverse credibility deter-
mination that is flawed, as happened here, then a reassess-
ment of credibility may turn out to remove the need for cor-
roboration. See Rapheal v. Mukasey, 533 F.3d 521, 528–30
(7th Cir. 2008). The case must be remanded for a reassess-
ment of Nadmid’s credibility.
Nadmid also challenges the IJ’s alternative findings that,
assuming Nadmid to be credible, his proposed social group
lacked an immutable or fundamental characteristic and that
no nexus could be shown between the persecution he suf-
fered and his political opinion or membership in his particu-
lar social group. The Board did not address these alternative
findings, and we will not address them in the first instance.
See INS v. Ventura, 537 U.S. 12, 16–17 (2002); Sibanda v. Holder,
778 F.3d 676, 681 (7th Cir. 2015). On remand they deserve
scrutiny.
III. CONCLUSION
We GRANT the petition and remand for further proceed-
ings consistent with this opinion.