Durgac, Cahit v. Gonzales, Alberto R. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2269
CAHIT DURGAC and OZGUR YASAR,
Petitioners,
v.
ALBERTO GONZALES, Attorney General
of the United States,
Respondent.
____________
On Petition for Review of an Order of
the Board of Immigration Appeals.
Nos. A95 413 126 & A95 413 127
____________
ARGUED AUGUST 3, 2005—DECIDED DECEMBER 5, 2005
____________
Before KANNE, WOOD, and SYKES, Circuit Judges.
WOOD, Circuit Judge. Cahit Durgac, a Kurdish university
student from Turkey, applied for asylum on behalf
of himself and his wife, Ozgur Yasar, contending that he
was detained and beaten by the Turkish security services
because he formed a Kurdish study group. The Immigration
Judge (IJ) denied the application, finding that Durgac was
not credible and that he did not have a well-founded fear of
future persecution. The Board of Immigration Appeals
(BIA) affirmed without opinion. Because we conclude that
the reasons the IJ gave for rejecting Durgac’s credibility do
not, even under deferential review, support his conclusion,
we grant the petition for review and remand for further
proceedings.
2 No. 04-2269
I
At his immigration hearing (which also covered Yasar
as a derivative applicant), Durgac recounted the follow-
ing sequence of events. In late 2000, upon returning to
Turkey from a four-month visit to the United States, he
founded a study group dedicated to learning more about his
Kurdish heritage. The group was comprised mostly of other
Kurdish students, but several ethnic Turks were also
members, including Durgac’s future wife Ozgur Yasar. The
students openly met either in the cafeteria at the Univer-
sity of Erciyes in Nevsehir or, less frequently, in a member’s
home to discuss Kurdish politics, literature, and history,
and to brush up on their Kurdish language skills, which
were rusty because of restrictions the Turkish government
places on speaking Kurdish in public. The group’s activities,
and in particular their uninhibited use of the Kurdish
language, soon attracted the attention of police officers at
the university. The police “ke[pt] a close eye” on the group,
as did a number of Turkish nationalist students who,
according to Durgac, swore at members of the group and
put psychological pressure on them. On several occasions,
there were physical confrontations between the group
members and the rival students, including a fistfight
between Durgac and a nationalist student in early February
2001.
About a month later, as Durgac was walking from the
university to his apartment, a police car pulled up and two
officers jumped out, grabbed him by the neck, and dragged
him into the car. The officers took him to a police station.
There, according to his testimony, they “took me into a room
where they continued to swear at me and punch me and hit
me in the back, and then they blindfolded me.” The police
held him for 18 days, fed him “dirty food and water,” and
beat him severely three times, striking him repeatedly in
the back, stomach, and knees. Although the officers did not
question him or demand to know his name, he saw them
No. 04-2269 3
take his identification card from his wallet just before he
was blindfolded. They “hurled insults” at him, told him that
he “needed to accept the authority of the state,” and called
him a “traitor” because his brother had sought asylum in
Great Britain. (Durgac’s brother fled Turkey in 1994
because of his membership in several Kurdish groups and
was apparently granted refugee status in the United
Kingdom in 2000. Durgac testified that following his
brother’s departure, he and his parents often noticed the
police watching them.)
The police released Durgac in mid-March 2001. At that
time, they warned him not to meet with his Kurdish
study group and to stop dating Yasar because she is not
Kurdish. Durgac heeded the first part of that advice, in part
because he heard that another member of the group had
suffered an ordeal similar to his, but his problems contin-
ued. He began receiving threats from several of the nation-
alist students, who wanted him to inform on his friends.
Durgac testified that he was afraid to go to the police,
because they were in league with the nationalists and
might again detain and beat him. Several weeks after his
release, he concluded that he had no choice but to leave
Turkey. He applied for the renewal of his passport. Al-
though there were “some difficulties” and the process took
longer than usual, he received it in May and he left for the
United States on June 1.
After listening to this testimony, the IJ denied Durgac’s
application, finding that he had failed to provide “credible
probative evidence.” His first and principal reason for this
decision was his skepticism that the police would single out
someone who was merely a member of a Kurdish study
group. As the IJ put it, “The respondent was not an activist
supporting Kurdish rights, was not outspoken, did not make
public appearances or speeches against the Turkish govern-
ment, but simply met with friends privately to discuss
Kurdish history and language.” The IJ also provided five
4 No. 04-2269
additional reasons for his adverse credibility finding: (2) he
found it suspicious that the officers did not interrogate
Durgac or ask him his name; (3) he noted that Durgac had
been able to leave Turkey without difficulty; (4) Durgac had
testified inconsistently about which branch of the police had
detained him; (5) the IJ thought it “conspicuous” that
Durgac was unable to provide any evidence corroborating
the fact of his detention; and (6) he did not believe that the
local police would have had any information about Durgac’s
brother at the time Durgac was detained.
The BIA affirmed the IJ’s decision without opinion. At the
same time, it denied Durgac’s motion to remand in order to
present new evidence, including additional human rights
reports from Amnesty International, the United Nations,
and the British and Canadian governments. Durgac filed a
timely petition for review with this court. Later, we granted
a stay of removal pending the resolution of the petition.
II
In order to qualify for asylum, Durgac must demon-
strate that he meets the statutory definition of “refugee,”
which in turn requires him to show that he is unable or
unwilling to return to Turkey “because of persecution or a
well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or
political opinion.” 8 U.S.C. § 1101(a)(42)(A). When, as here,
the BIA affirms an IJ’s ruling without opinion, this court
reviews the IJ’s decision. See Soumahoro v. Gonzales, 415
F.3d 732, 736 (7th Cir. 2005); Lin v. Ashcroft, 385 F.3d 748,
751 (7th Cir. 2004). We review the IJ’s decision under the
deferential substantial evidence test and will reverse only
if the evidence compels a different result. Mitreva v.
Gonzales, 417 F.3d 761, 764 (7th Cir. 2005); Balogun v.
Ashcroft, 374 F.3d 492, 498 (7th Cir. 2004). As one would
suspect from that standard, outright reversal is almost
No. 04-2269 5
never called for. More commonly, petitions for review will
be granted when the court concludes that there is more that
must be done at the agency level before a final conclusion
on an asylum application is possible. That is the context in
which the rule requiring the IJ’s credibility findings to be
supported by specific, cogent reasons that are based in sub-
stantial evidence should be understood. See Lin, 385 F.3d
at 751.
We turn therefore to a review of the reasons the IJ gave
here for rejecting Durgac’s petition. First, the IJ was
skeptical that the activity of meeting privately with others
to study Kurdish culture would elicit a hostile response
from the Turkish government. But, to begin with, this
overlooks the fact that most of the group’s meetings were
not in private; they were in the university cafeteria in full
view of others, including the unsympathetic nationalist
students. The State Department Country Report for 2002
confirms that similar expressions of Kurdish culture have
led to mistreatment by the Turkish government. It com-
ments, for example, that “Kurds who publicly or politically
asserted their Kurdish identity or publicly espoused using
Kurdish in the public domain risked public censure,
harassment, or prosecution.” It goes on to list the examples
of a 14-year-old boy who was detained and beaten by
authorities merely for saying that he was “proud to be
a Kurd,” and four parents who were imprisoned for peti-
tioning for Kurdish-language education for their children.
The Report also describes police interference with Kurdish
groups: “Police exerted pressure against Kurdish cultural
groups and hindered their activities, and local officials
monitored and often interrupted their cultural events.” This
material directly corroborates Durgac’s narrative.
The IJ’s second reason for disbelieving Durgac’s account
rested on Durgac’s statement that he was detained without
being interrogated or asked to identify himself. Taking the
6 No. 04-2269
latter point first, the record shows that this was not at all
mysterious. Durgac’s own testimony explained why the
police did not need to ask him anything about his iden-
tity: they took his identification card directly from his
wallet. More fundamentally, the fact that they snatched
him off the street suggests that they already knew who he
was: why abduct a random man and then later check his
identity to see if he was worth abducting? The lack of
interrogation would be important only if it is an inevitable
part of a detention. The Country Report discusses the use of
beatings and torture during incommunicado detentions in
Turkey, but it nowhere states that interrogation is always
a feature of these unfortunate sessions. Only impermissible
speculation would support a finding that a search for more
information, rather than a desire to punish and intimidate,
lay behind the police’s actions. See Chen v. Gonzales, 420
F.3d 707, 710 (7th Cir. 2005); Korniejew v. Ashcroft, 371
F.3d 377, 383 (7th Cir. 2004), citing Gao v. Ashcroft, 299
F.3d 266, 272 (3d Cir. 2002).
The IJ’s next reason was that the Turkish government
was willing to issue Durgac a passport and allow him to
leave the country. We have pointed out on other occasions
that governments are often happy to see members of
“undesirable” ethnic groups or other alleged troublemakers
depart. See, e.g., Grupee v. Gonzales, 400 F.3d 1026, 1027
(7th Cir. 2005) (“Many dictatorial regimes want their
internal opponents silenced and do not much care whether
they flee, die, or rot in prison.”); Hengan v. INS, 79 F.3d 60,
63 (7th Cir. 1996); see also Angoucheva v. INS, 106 F.3d
781, 791 (7th Cir. 1997) (Rovner, J., concurring). To the
extent that this point carries some weight, it supports
rather than undermines Durgac’s credibility.
In his asylum application (filled out in English by another
person), Durgac says that the “Jandarma” or secret police
had monitored his activities at the university, but at the
No. 04-2269 7
hearing he testified (in Turkish) that the “civil police”
monitored and detained him. The IJ regarded this discrep-
ancy as a further reason to reject his credibility. He ques-
tioned why the civil police rather than the Jandarma would
have detained Durgac, since the Jandarma are the ones
with the responsibility for investigating illegal Kurdish
activities. But once again, this admitted discrepancy does
not amount to a reason to reject Durgac’s credibility. The
Country Report itself states that the civil police have
“primary responsibility for security” over cities like
Nevsehir, while the Jandarma operate in the countryside.
The government responds that Durgac would have noticed
the conspicuous word “Jandarma” when looking over the
written application, but, apart from the fact that the record
does not reflect what the word would have looked like in the
distinctive Turkish alphabet and thus whether Durgac
would have recognized the English version, this minor
inconsistency is immaterial. See Ssali v. Gonzales, 424 F.3d
556, 564 (7th Cir. 2005); Uwase v. Ashcroft, 349 F.3d 1039,
1043 (7th Cir. 2003). What matters is the fact of Durgac’s
detention by the security services, not which discrete
branch actually collared him.
The IJ’s next reason was in keeping with the perennial
search for corroborating evidence. See generally Dawoud
v. Gonzales, 424 F.3d 608, 612-14 (7th Cir. 2005). Here, he
found Durgac’s testimony wanting in credibility because
Durgac had no evidence corroborating his 18-day detention
and abuse. But, as our sister circuit held, an IJ may not
require an asylum applicant to obtain corroborating
evidence directly from his abusers. See Ahmadshah v.
Ashcroft, 396 F.3d 917, 921 (8th Cir. 2005). That is exactly
what the IJ apparently wanted here, when he asked “Did
you get a record of being detained 18 days? I mean, did they
have to give you a paper showing that you were released?”
Perhaps the IJ was also concerned about the fact that
Durgac never sought medical treatment for his injuries, but
8 No. 04-2269
failing to supply medical evidence is not inconsistent with
having been abused. Cf. Abdulrahman v. Ashcroft, 330 F.3d
587, 598 (3d Cir. 2003); id. at 600 (Becker, J., concurring,
noting that not all beatings leave scars that are susceptible
to medical corroboration). The State Department Country
Report stated that “[h]uman rights observers and medical
experts said that security officials [in Turkey] often used
methods that did not leave physical traces.” The IJ also
thought that the delay of several weeks between Durgac’s
release and his decision to leave the country undermined
his account, but we have held that “an asylum applicant’s
decision not to flee her home country immediately does not
mean that she was not persecuted.” Nakibuka v. Gonzales,
421 F.3d 473, 477 (7th Cir. 2005). Moreover, Durgac did
explain that he decided to depart as soon as it became clear
that the threats from the nationalist students would
continue unabated. He left as soon as his passport was
renewed, unlike some petitioners who linger for a year or
more. Compare Kondakova v. Ashcroft, 383 F.3d 792, 797
(8th Cir. 2004) (remaining in country for a year inconsistent
with persecution).
Finally, the IJ discredited Durgac because he did not
believe that the police would have known about Durgac’s
brother’s bid for asylum in 1994. Durgac points to his
brother’s affidavit (which, contrary to the representations
of both parties, is in the record), in which the brother states
that after he applied for asylum, members of the Turkish
community reported his case to the Turkish consulate. If
that were all, we think that the IJ would be justified in
finding it implausible that a different government agency
would know of the brother’s application seven years later.
But the relevant time gap may not have been so long,
because the brother was apparently not granted asylum
until 2000, right around the same time that Durgac was
experiencing problems. Furthermore, Durgac’s testimony
indicates that the police had not been inactive between
No. 04-2269 9
1994 and 2000; instead, they were lurking around Durgac
and his family, watching their actions. Thus, the inference
the IJ drew was a weak one at best. Standing alone, it is
not enough to support the adverse credibility finding. See
Hengan,79 F.3d at 63.
In addition to rejecting Durgac’s credibility with respect
to past events, the IJ separately found that he failed to
demonstrate a well-founded fear of future persecution. But
his analysis of that distinct ground for relief relies on
the same factors we have just discussed: speculation
that a Kurdish study group member would have nothing
to fear in Turkey, and Durgac’s ability to leave the country.
These points do not amount to substantial evidence indicat-
ing the absence of a well-founded fear. The IJ also rejected
Durgac’s claim that he feared return because he might be
conscripted for military service or face trouble because of
his mixed marriage (Yasar, recall, is an ethnic Turk). Even
if this were correct, and we see nothing that undermines
that part of the IJ’s decision, Durgac relied on these
arguments only peripherally. His primary contention is that
he has suffered persecution because of his Kurdish ethnic-
ity.
We conclude that the IJ’s adverse credibility determina-
tion is not supported by substantial evidence. Durgac’s
credibility must be reassessed in light of this opinion. If
he is found to be credible, then the IJ must determine
whether an 18-day detention coupled with blindfolding,
underfeeding, and multiple beatings amounts to past
persecution, and if so, whether the government can rebut
the presumption that would arise of a well-founded fear
of future persecution.
The petition for review is GRANTED and the case is
returned to the Board for further proceedings. In light of
our ruling on the petition, we need not reach Durgac’s claim
that the BIA abused its discretion when it denied
his motion to reopen.
10 No. 04-2269
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-5-05