Vassili Kourski v. JOHN ASHCROFT , Attorney General of the United States

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1742
V ASSILI K OURSKI ,
Petitioner,
v.
J OHN A SHCROFT , Attorney General of the United States,
Respondent.
____________
On Petition to Review an Order of the
Board of Immigration Appeals.
____________
A RGUED D ECEMBER 16, 2003—DECIDED J ANUARY 22, 2004
____________
Before B AUER , P OSNER , and E VANS , Circuit Judges.
P OSNER , Circuit Judge. Vassili Kourski asks us to set aside
the order removing (deporting) him from the United States.
He was born in Russia, came to the United States in 1996 on
a tourist visa, and applied for asylum before his visa ex-
pired. He claims to be Jewish, and to have been persecuted
in Russia by anti-Semites whom the police either cannot
or will not control. The only evidence of his being Jewish
that he presented at his removal hearing, besides his own
sworn testimony, was a copy of a purported Russian birth
certificate, listing his nationality as Jewish. The immigration
service determined that it was a forgery. Kourski testified

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2 No. 03-1742
without contradiction that his mother had sent him the
document and that he didn’t know it was a forgery.
The immigration judge found “that because [Kourski] has
not rebutted the conclusions of the Service’s expert witness
as to the genuineness of his birth certificate, his claim [to
being Jewish] is discredited and his testimony is rejected as
lacking in credibility. Accordingly, his application for asy-
lum will be denied.” In a footnote the immigration judge
“also note[d] that [Kourski] did not present any other evi-
dence to corroborate his alleged Jewish nationality includ-
ing, for example, the testimony or affidavit of his brother
who lives in Chicago.” The judge nevertheless granted
Kourski’s motion for voluntary departure on the ground
that “the record does not conclusively establish fraud.”
The Board of Immigration Appeals affirmed. It remarked
that the immigration judge had denied Kourski’s applica-
tion for asylum because Kourski “was found not credible
due to his submission of a fraudulent birth certificate.” After
satisfying itself that the birth certificate was indeed a
forgery, the board said that it “agree[d] with the
Immigration Judge that [Kourski] was not credible as a re-
sult of his having submitted a fraudulent birth certificate in
order to corroborate his ethnicity as Jewish and his identity.
Without credible testimony, he has failed to meet his burden
of proof.”
There is a gaping hole in the reasoning of the board and
the immigration judge. Suppose that Kourski had merely
testified that he was Jewish, without presenting any docu-
mentary evidence. The immigration judge might have be-
lieved him despite the absence of corroboration, and on that
basis have approved his application for asylum, since “the
testimony of the applicant [for asylum], if credible, may be
sufficient to sustain the burden of proof without corrobora-
tion.” 8 C.F.R. § 208.13(a); see Georgis v. Ashcroft, 328 F.3d

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No. 03-1742 3
962, 969 (7th Cir. 2003). Jews constitute an ethnic group as
well as a religious one. Many Jews are not religious, do not
belong to a synagogue, and do not have any documents
identifying them as Jews. It is true that the Soviet Union
considered Jews a nationality and that Soviet birth certifi-
cates list the nationality of the newborn, but many people
have lost their birth certificates and Soviet records are in
disarray, so it might be impossible to procure a substitute.
Failure to tender a birth certificate to prove that one was a
Russian Jew would therefore not be decisive evidence that
one was not Jewish. Even so, the immigration judge might,
on the authority of such cases as Mulanga v. Ashcroft, 349
F.3d 123, 133-34 (3d Cir. 2003); Qiu v. Ashcroft, 329 F.3d 140,
153 (2d Cir. 2003); Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d
Cir. 2001), and In re M-D-, 21 I. & N. Dec. 1180, 1184 (BIA
1998), have denied Kourski’s application for asylum on the
ground that Kourski had failed to provide evidence corrob-
orating testimony by him that was vital to his claim or to
explain why he could not provide such evidence. These
cases are in some tension with the regulation we quoted,
and have been rejected by the Ninth Circuit, Ladha v. INS,
215 F.3d 889, 899 (9th Cir. 2000), but even if they are sound
and would have provided a valid ground for the denial of
Kourski’s application, that was not the ground of the denial.
The immigration judge did remark the absence of an
affidavit from Kourski’s brother (though it is odd to think
a brother’s affidavit would be persuasive evidence), but
based his decision not on the absence of corroboration of
Kourski’s claim to be Jewish (he did not, for example, fault
Kourski for not having presented any evidence about the
circumstances in which his mother had obtained the forged
birth certificate) but on the unsupportable ground that the
forgery showed that Kourski was not a credible witness.

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4 No. 03-1742
It was unsupportable because the immigration judge
did not find that Kourski knew or suspected that the birth
certificate was a forgery. There is no evidence apart from his
testimony concerning the circumstances in which his mother
procured the forged birth certificate—whether she knew it
was a forgery, which would be some evidence that Kourski
really isn’t Jewish. As far as the record and the findings are
concerned, neither Kourski nor his mother knew. And if
they didn’t know, the fact of forgery cannot be evidence
against the credibility of his testimony that he is Jewish. The
testimony is neither corroborated nor undermined by a
forgery of which he had, so far as appears, no knowledge.
The mistake is repeated in the immigration service’s brief
in this court, which states that because “Kourski’s birth
certificate was counterfeit, which was the only documentary
evidence in the record that Kourski was Jewish, the IJ
understandably found that he was not a credible witness.”
That would have been a legitimate finding only if there
were reason to believe that Kourski knew or suspected that
the birth certificate had been forged. Of course, even if he
forged it himself, this would not prove that he was not
Jewish, as it is not unknown for persons who have valid
claims but no evidence to support it to forge some evidence.
But the immigration judge wouldn’t have to accept such an
argument. Without reason to believe that Kourski knew or
suspected the forgery, however, proof that it was a forgery
wouldn’t be evidence that he was lying.
At the argument in this court, the government’s lawyer
said that Kourski “must have known” the birth certificate
was a forgery. She gave no reason for this assertion, and,
more important, neither the immigration judge nor the
Board of Immigration Appeals found that Kourski “must
have known,” or even have suspected, that the birth cer-

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No. 03-1742 5
tificate was a forgery. Had the immigration judge thought
Kourski knew or suspected, he would have been unlikely to
grant voluntary departure. It was a subtle forgery, which is
why the board devoted most of its opinion to satisfying
itself that it really was a forgery, and so it might well have
fooled Kourski and his mother. Kourski denied it was a
forgery, which may have misled the immigration judge and
the board into thinking that his claim for asylum depended
on proving that it was not.
Relying on a case called In re O-D-, 21 I. & N. Dec. 1079
(BIA 1998), the government argues that an asylum appli-
cant’s testimony can be credible, in the face of a forged
document, only if (1) the document relates to an immaterial
or peripheral issue or (2) the applicant had used the forged
document to escape from his persecutors. Ignored is the fact
that if the applicant has no reason to know that the docu-
ment is forged, its existence does not undermine his credi-
bility, though it deprives his testimony of the extra boost to
credibility that it would have if it were corroborated.
The denial of asylum to Kourski may be correct or
incorrect, but at present it lacks a reasoned basis, and so the
order of removal is vacated and the case returned to the
immigration authorities for further proceedings consistent
with this opinion.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-22-04

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