Daniiar Santashbekov v. Loretta Lynch

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-2359
DANIIAR SANTASHBEKOVICH SANTASHBEKOV,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order of
the Board of Immigration Appeals
No. A205-800-334
____________________
ARGUED APRIL 6, 2016 — DECIDED AUGUST 24, 2016
____________________
Before FLAUM, RIPPLE, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Daniiar Santashbekov petitions
for review of an order of the Board of Immigration Appeals
denying his application for asylum. The immigration judge
found that Santashbekov’s claims of political persecution
were not credible, and the Board affirmed. We deny Santash-
bekov’s petition because substantial evidence supports the
judge’s and Board’s credibility findings.
2 No. 15-2359
I. Factual and Procedural Background
In early 2013, Daniiar Santashbekov filed an application
for asylum claiming that he faced persecution for his political
activism as a member of the youth wing of the Ata Meken
party in his native Kyrgyzstan. His asylum application was
denied, and he was served with a Notice to Appear for re-
moval proceedings on April 24, 2013. Santashbekov admitted
his removability but renewed his application for asylum.
The Attorney General or Secretary of Homeland Security
may grant asylum to an immigrant who has “a well-founded
fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion”
in his home country. 8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(A).
The applicant for asylum has the burden of proof, which may
be satisfied by the applicant’s own testimony if it is credible.
8 U.S.C. §§ 1158(b)(1)(B), 1231(b)(3)(C). A trier of fact may
base a credibility determination on a wide variety of factors,
“using whatever combination of considerations seems best in
the situation at hand.” Mitondo v. Mukasey, 523 F.3d 784, 789
(7th Cir. 2008); see 8 U.S.C. § 1158(b)(1)(B)(iii). The trier of fact
may base an adverse credibility decision on inconsistencies,
inaccuracies, or falsehood, and there is no longer any require-
ment that an “inconsistency, inaccuracy, or falsehood goes to
the heart of the applicant’s claim….” 8 U.S.C.
§ 1158(b)(1)(B)(iii).
Santashbekov’s application stems from political unrest in
Kyrgyzstan. In April 2010, opposition parties protested and
ousted the then-president. Ata Meken was one of the opposi-
tion parties, and it became part of a new coalition govern-
ment. After the 2010 revolution, according to the U.S. State
No. 15-2359 3
Department, Kyrgyzstan continued to face instability and hu-
man rights problems, including arbitrary arrests and torture
by law enforcement and security forces.
The immigration judge characterized Santashbekov’s tes-
timony about his own situation as “vague” and “extremely
confusing.” In essence, Santashbekov testified that he had
joined the youth wing of the Ata Meken party at his university
in Bishkek in October 2010. After he gave a political speech at
his university in December 2010, he began experiencing per-
secution by a man named Kurmanov, who Santashbekov be-
lieves is a member of an opposing political party and a police
or government official. Santashbekov testified that Kurmanov
and his associates asked him to repudiate the Ata Meken
party and detained and beat him several times in 2011. He tes-
tified that after the beatings, he was afraid to leave his home
and changed his address in Bishkek. Santashbekov also
changed his name, which was formerly Sultanhodzhaev. San-
tashbekov testified that his supervisor at the Ata Meken party,
Zhoomart Saparbaev, recommended that he flee the country
and helped him.
Santashbekov also submitted documentary evidence to
the immigration judge. He submitted hospital paperwork that
confirms that he received medical treatment in Kyrgyzstan
corresponding to the beatings he described. He submitted
criminal court documents showing that Kurmanov was pros-
ecuted and that Santashbekov was named as a “plaintiff” in
the proceeding. And Santashbekov submitted a document
confirming that he legally changed his name in December
2011. Finally, he submitted a letter from Saparbaev saying that
Santashbekov had “helped us working with young people in
various activities.” The letter does not mention the Ata Meken
4 No. 15-2359
party or detail Santashbekov’s political involvement, but it is
on letterhead from the Jogorku Kenesh, Kyrgyzstan’s national
legislature.
The immigration judge did not believe Santashbekov’s tes-
timony. He made an adverse credibility determination based
on the vague and sometimes contradictory nature of Santash-
bekov’s testimony. The judge also found that Santashbekov’s
documentary evidence was insufficient to support his claims
of political activity or persecution. The judge concluded that
Santashbekov did not carry his burden of proof and denied
the application for asylum. The Board affirmed the immigra-
tion judge’s denial, also noting inconsistencies in Santash-
bekov’s testimony. 1
II. Analysis
Where the Board affirms the immigration judge’s decision
and adds its own analysis, as it did here, we review the immi-
gration judge’s decision and the Board’s additional reasoning.
Darinchuluun v. Lynch, 804 F.3d 1208, 1214 (7th Cir. 2015). Our
review is deferential. We review administrative findings of
fact, including credibility determinations, for substantial evi-
dence. Tawuo v. Lynch, 799 F.3d 725, 727 (7th Cir. 2015). Under
1
Santashbekov also applied for withholding of removal and protec-
tion under the United Nations Convention Against Torture. He has not
argued for withholding of removal in his petition for judicial review, and
he did not raise the torture claim before the Board or on judicial review.
An unauthorized immigrant who does not meet burden of proof for an
asylum claim necessarily fails to meet the more stringent requirements for
withholding of removal and relief under the Convention Against Torture.
Shmyhelskyy v. Gonzales, 477 F.3d 474, 481–82 (7th Cir. 2007).
No. 15-2359 5
that standard, we must uphold factual determinations “sup-
ported by reasonable, substantial, and probative evidence on
the record considered as a whole.” Balogun v. Ashcroft, 374
F.3d 492, 498 (7th Cir. 2004). We may not reverse an adminis-
trative finding of fact “unless any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B). An immigration judge’s credibility findings
should be overturned only under “extraordinary circum-
stances.” Balogun, 374 F.3d at 498, citing Pop v. INS, 270 F.3d
527, 531 (7th Cir. 2001). Still, an adverse credibility finding
must be supported by specific and cogent reasons, and the
judge must consider explanations offered for gaps and incon-
sistencies. See Lishou Wang v. Lynch, 804 F.3d 855, 858 (7th Cir.
2015) (granting relief); Tawuo v. Lynch, 799 F.3d at 726 (deny-
ing relief).
Here, substantial evidence supports the Board’s and the
immigration judge’s finding that Santashbekov’s testimony
was not credible. The Board and the judge noted that Santash-
bekov testified vaguely about Kurmanov’s identity. He could
not identify the political party to which Kurmanov belonged
or the part of the government in which he worked. Similarly,
as the Board and the judge noted, despite being prompted by
the immigration judge, Santashbekov did not explain why
Kurmanov would travel the 400 kilometers from Bishkek to
Karakol to persecute him, as Santashbekov had claimed he
had. Immigration authorities may discredit testimony for lack
of “inherent plausibility.” 8 U.S.C. § 1158(b)(1)(B)(iii). San-
tashbekov’s vagueness and his failure to clarify the parts of
his story the judge found implausible provided sufficient
grounds to support an adverse credibility finding. See
Shmyhelskyy v. Gonzales, 477 F.3d 474, 479 (7th Cir. 2007) (af-
firming adverse credibility determination where, among
6 No. 15-2359
other things, testimony about fear of persecution was “vague
and unconvincing”).
There are also inconsistencies in Santashbekov’s story. De-
spite a request for clarification at the hearing, Santashbekov
did not explain to the judge why his new name appeared on
a criminal court document dated August 2011, though he tes-
tified that he began using his new name in December 2011
and a name-change document showed the same date. San-
tashbekov also gave different years for when he joined the Ata
Meken party in his asylum application and in his testimony
before the immigration judge. He testified that he joined the
Ata Meken party in October 2010, but his asylum application
said he joined in October 2009.
An inconsistency need not go to the heart of an applicant’s
claims to justify an adverse credibility determination, but “the
inconsistencies spotted by the [judge] should not be trivial.”
Tawuo, 799 F.3d at 727, 728 (inconsistencies in story not “earth-
shaking,” but provided substantial evidence for credibility
determination nonetheless); see also Chun Sui Yuan v. Lynch,
No. 15-2834, — F.3d —, —, 2016 WL 3536667, at *7 (7th Cir.
June 28, 2016) (granting petition; inconsistencies identified by
Board were “either so easily explained or so trivial as to call
into doubt the Board’s decision”); Shmyhelskyy, 477 F.3d at 480
(“We have not hesitated to reverse an [immigration judge’s]
credibility assessment when grounded in trivial details or eas-
ily explained discrepancies.”). Here, Santashbekov’s mistakes
regarding important dates and his vague testimony support
the adverse credibility determination.
No. 15-2359 7
While Santashbekov’s documentary evidence may corrob-
orate some aspects of his testimony, it does not undermine the
judge’s credibility finding. As the Board noted, the letter from
Saparbaev does not mention any of the particulars of Santash-
bekov’s claimed political activity or persecution (although a
letter from a member of the national legislature may suggest
that Santashbekov was somehow involved in politics). As the
judge noted, Santashbekov did not submit other evidence
from any other party members verifying his political activi-
ties. And as the Board noted, the medical evidence corrobo-
rates that Santashbekov was injured at the relevant times, but
it does not independently establish that political persecution
was the cause. The judge did not err by giving the medical
records limited weight because of the vague testimony about
how they were obtained. See Tawuo, 799 F.3d at 729 (it was
asylum applicant’s burden to authenticate documents; no er-
ror in refusing to let applicant submit more documents to cor-
roborate testimony after immigration judge found initial
round of documents “wanting”).
Some aspects of the Board’s and judge’s decisions, how-
ever, are troubling. For example, the judge wrote that San-
tashbekov’s parents and sibling in Kyrgyzstan remain “well
and intact.” But in his asylum application and in the hearing
before the judge, Santashbekov said the same people who per-
secuted him had also beaten his brother and broken his
brother’s leg. Santashbekov submitted a medical document
corroborating his brother’s injury (although, as noted above,
the judge did not err by giving medical records limited
weight).
Similarly, the Board and immigration judge found that
Santashbekov’s testimony that he was not involved in the
8 No. 15-2359
April 2010 protests, and that nothing bad happened to him as
a result of the protests, was inconsistent with his asylum ap-
plication. The application indicated that his political persecu-
tion was due “to the incidents related to the April 7, 2010 pro-
tests and the following chaos” (emphasis added). We are mind-
ful of our deference to the Board and immigration judge in
the area of credibility, but Santashbekov’s asylum application
did not claim he was involved directly in the April 2010 pro-
tests. His asylum application made clear that his persecution
was due to the chaos related to and following the April 2010
protests that led to the then-president’s ouster. We do not see
a basis for discrediting Santashbekov here.
We are also troubled by the Board’s and immigration
judge’s concern that Santashbekov’s asylum application did
not include many of the details in his testimony before the
judge, such as his December 2010 political speech. Material
omissions may certainly support an adverse credibility find-
ing. Shmyhelskyy, 477 F.3d at 480 (we may uphold adverse
credibility findings when petitioner is “unable to explain a
significant discrepancy between her hearing testimony and
her asylum application”), citing Korniejew v. Ashcroft, 371 F.3d
377, 386 (7th Cir. 2004). However, the I-589 asylum application
form provides small boxes to detail an applicant’s experi-
ences, containing space for about ten lines of text. We caution
against drawing adverse credibility conclusions from an ap-
plicant providing differing levels of detail in such different
contexts. The limited space on the I-589 form provides a read-
ily apparent reason why Santashbekov was able to provide a
more detailed account of his alleged persecution at the hear-
ing than on the application. Cf. Shmyhelskyy, 477 F.3d at 481
(applicant “provided no reason for his failure to allege this
No. 15-2359 9
beating in his asylum application”). The Board’s and the im-
migration judge’s decisions were thus not flawless, but both
considered Santashbekov’s claims and evidence, made rea-
soned decisions, and supported their decisions with substan-
tial evidence.
Finally, Santashbekov argues that the Board and immigra-
tion judge violated his due process rights by dismissing his
arguments “with no analysis” and failing to “give fair and
proper weight to the evidence at hand … .” See Reno v. Flores,
507 U.S. 292, 306 (1993) (Fifth Amendment entitles aliens to
due process of law in deportation proceedings). This argu-
ment is wide of the mark. The Board and the judge provided
ample analysis to justify their decisions. Santashbekov’s argu-
ment that the Board and judge incorrectly weighed the evi-
dence “is indistinguishable from a straightforward claim that
[their decisions were] not supported by substantial evidence
on the record.” Albu v. Holder, 761 F.3d 817, 822 (7th Cir. 2014).
That argument fails both as a due process claim and on the
merits.
Accordingly, Santashbekov failed to carry his burden of
proof to establish his eligibility for asylum. 8 U.S.C.
§ 1158(b)(1)(B)(i). The petition for review of the Board’s deci-
sion is DENIED.