Violeta Shtaro v. Alberto R. Gonzales

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-4201
V IOLETA S HTARO ,
Petitioner,
v.
A LBERTO R. G ONZALES ,
Respondent.
____________
On Petition for Review of an Order of
the Board of Immigration Appeals.
No. A 95 403 012
____________
A RGUED A UGUST 3, 2005—D ECIDED J ANUARY 24, 2006
____________
Before K ANNE , W OOD , and S YKES , Circuit Judges.
K ANNE, Circuit Judge. Albanian citizen Violeta Shtaro
seeks review of the Board of Immigration Appeals’ (“BIA”)
removal order summarily affirming the Immigration
Judge’s (“IJ”) decision to deny her eligibility for asylum on
the ground that her testimony was not credible. We con-
clude that the IJ’s decision is not supported by substantial
evidence and therefore grant Shtaro’s petition.
I.
Shtaro entered the United States in March 2001 under a
Slovenian passport in someone else’s name. A year later she
petitioned for asylum, withholding of removal, and protec-

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2 No. 04-4201
tion under the Convention Against Torture, claiming that
she was persecuted on account of her political opinion. The
INS denied her petition, and she was issued a Notice to
Appear charging her with removability for entering the
c o u n t r y w i t h o u t v a l i d d o c u m e n t a t i o n . S e e
INA § 237(a)(1)(A), 8 U.S.C. § 1227(a)(1)(A).
At her hearing before the IJ, Shtaro testified that she had
participated in local politics in the city of Vlora for a
number of years. She became an “active supporter” of the
Democratic Party in 1992 while still a student, and joined
the Party officially in 1995. In February 2000, she was
chosen by the Party’s leadership to serve as secretary to the
Party Chairman. In that position her duties included
handling correspondence for the Chairman, helping to
prepare his speeches, and reading party platforms aloud for
television and radio broadcasts.
Shtaro testified that her troubles began in May 2000,
when she was approached by two members of the civil
police. They told her that she was going to be a polling
commissioner for the October local elections and offered her
a bribe of $5,000 to certify the results in favor of the
Socialist Party. Shtaro refused the offer and reported the
incident to the Democratic Party Chairman, but she
continued to receive anonymous letters threatening her
with “hard days” if she did not change her mind.
Later that month, shortly before a Democratic Party rally
that she helped to organize, Shtaro received an anonymous
letter warning her to “disappear from the city” if she
“want[ed] to live.” On the evening of the rally itself, her
home was burglarized; among the items stolen were cash,
jewelry, and a number of “personal documents,” including
wedding photographs. Shtaro and her husband did not
report the burglary because they believed the police were
involved and feared reprisal. Their decision to “stay quiet”
was reinforced on the following day when she heard that

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No. 04-4201 3
the Socialists had killed a “friend” of hers, a journalist “with
democratic belie[f]s.”
Shtaro testified that she continued to work for the
Democratic Party, and was in fact selected as one of the
polling commissioners for the October elections. During the
voting, she noticed a number of “irregularities,” which she
reported to the Democratic Party Chairman. She refused to
certify the tainted election results, even though a police
officer monitoring the polling place warned her that the
refusal would endanger her life.
When the news broke that the Socialist Party had
prevailed in the election, “supporters of the Democratic
Party” took to the streets in protest, but they were ad-
monished by Party leadership to do so peacefully. Ten days
later, according to Shtaro, she received another letter
warning her to leave the city; the arrival of this letter
coincided with the explosion of a bomb in front of her
husband’s grocery store. Shtaro then went to stay with an
uncle in a small village to distance herself from the political
furor in Vlora. She returned to Vlora at Christmastime,
hoping that “the story would have been forgotten.”
Apparently, it was not. Shtaro testified that she returned
to work as secretary for the Democratic Party Chairman in
January 2001. On March 2, 2001, on her way home from
work, she was abducted by three armed men, who showed
her police IDs and took her to the police station where they
verbally abused and beat her. At that time, Shtaro was
several months pregnant. A few hours later, the police told
her they would bring her home, but Shtaro claimed that
they took her instead into the Soda Forest (where her
journalist-friend had been killed) and took turns raping her.
When they finally did take her home, they warned her not
to talk with any journalists or she would “really see what it
means to suffer.”
Shtaro claimed that she knew she was being punished for
her refusal to certify the election returns because during

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4 No. 04-4201
her detention the police made comments such as, “do you
see, you bitch, because you didn’t sign, that’s what is
happening,” and “[y]ou bitch would rather be
massacred than sign a piece of paper!” She also reported
that during the drive to the Soda Forest, one of the men
opened a folder and showed her the wedding pictures
that had been stolen from her home the previous May. He
told her that he would keep the pictures “to look at . . .
every time I miss you.”
In support of her testimony, Shtaro submitted a num-
ber of documents, including letters from both the former
and the current Chairman of the Democratic Party, confirm-
ing her employment with the Party; copies of her employ-
ment contracts; two affidavits from the doctor who treated
her after she was beaten and raped; and a police report
purporting to certify that she had been “arrested” on March
2, 2001, for “participation in the meetings organized by the
Democratic Party.”
The IJ rejected Shtaro’s testimony “standing alone” as a
basis for asylum, because he did not believe that she
would have been detained, beaten, and raped almost five
months after refusing to help fix an election that the
Socialist Party won anyway. He also rejected her at-
tempts to corroborate her claims, finding her story “inconsis-
tent” with a State Department country profile and her own
documentary evidence. The IJ added that her supporting
documents were so inconsistent and unreliable that they
not only failed to corroborate but “actually impeached” her
narrative account. Thus, though he credited her claim that
she had been secretary to the previous Democratic Party
Chairman, he found that Shtaro “failed to establish any-
thing more than that.” The BIA affirmed the IJ’s decision
without opinion.

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No. 04-4201 5
II.
Because the BIA summarily affirmed the IJ’s decision, we
review that decision as if it were the BIA’s. Dong v. Gonza-
les, 421 F.3d 573, 577 (7th Cir. 2005); Li v. Gonzales, 416
F.3d 681, 684 (7th Cir. 2005). Our review is for substantial
evidence. Chen v. Gonzales, 420 F.3d 707, 709 (7th Cir.
2005); Li, 416 F.3d at 684. We must uphold the IJ’s decision
unless the evidence compels us to a conclusion contrary to
the BIA’s, 8 U.S.C. § 1252(b)(4)(B); Li, 416 F.3d at 684;
Diallo v. Ashcroft, 381 F.3d 687, 698 (7th Cir. 2004).
In matters of credibility, we owe “great deference” to the
IJ’s judgment and will uphold an adverse credibility
determination as long as it is supported by “specific, cogent
reasons” with a “legitimate nexus to the finding.” Dong, 421
F.3d at 577 (internal citation and quotation omitted); see
also Hysi v. Gonzales, 411 F.3d 847, 852 (7th Cir. 2005).
However, we will not defer to findings not supported by
evidence in the record. Dong, 421 F.3d at 577-78; Korniejew
v. Ashcroft, 371 F.3d 377, 383 (7th Cir. 2004); Uwase v.
Ashcroft, 349 F.3d 1039, 1043 (7th Cir. 2003).
On appeal Shtaro’s principal argument is that the IJ’s
credibility determination is not supported by substantial
evidence because his reasoning is speculative, illogical, or
otherwise not cogent. We address her challenges to each
of the IJ’s four grounds for decision.
A. Implausible Testimony
Shtaro first contends generally that the IJ erred in
finding her testimony implausible because his skepticism
has no basis in the record. We agree. An IJ may not base an
adverse credibility determination on conjecture or specula-
tion, see Hor v. Gonzales, 421 F.3d 497, 500 (7th Cir. 2005);
Chen, 420 F.3d at 710; Uwase, 349 F.3d at 1042; or on
“ ‘personal beliefs or some perceived common knowledge,’ ”

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6 No. 04-4201
Dong, 421 F.3d at 577 (quoting Huang v. Gonzales, 403 F.3d
945, 949 (7th Cir. 2005)). The IJ gave four different reasons
for rejecting Shtaro’s testimony. He “[did] not believe” (1)
that she would be targeted for a bribe before her official
appointment to the election commission; (2) that her
position as election commissioner (or party secretary) was
important enough for her to be “singled out” for persecution;
(3) that the Socialists would be interested in persecuting
her in any case since her refusal to cooperate did not cause
them to lose the election; and (4) that they would bear a
grudge for five months after the elections. But the IJ points
to no evidence to support these assumptions about the
motivations of Shtaro’s alleged persecutors, and her story is
not so inherently improbable that we can uphold the
IJ’s decision without such evidence. Cf. Bace v. Ashcroft,
352 F.3d 1133, 1138-39 (7th Cir. 2003) (holding that there
was “ample evidence” that Albanian Democrat was perse-
cuted on account of political opinion after he refused to
certify fraudulent election returns in 1998). See also Hor,
421 F.3d at 499-500 (remanding case involving adverse
credibility determination, in part because IJ relied on
unsubstantiated assumption that petitioner’s alleged
persecutors would have attacked him, if at all, “ ‘long before
five months [had] passed’ ”).
B. Inconsistency With State Department Profile
Shtaro next argues that the IJ erred in discrediting her
testimony on the ground that it was “inconsistent” with a
contemporaneous State Department country profile. She
cites our decision in Bace, 352 F.3d at 1139, for the proposi-
tion that “specific events of an applicant’s testimony cannot
be ‘contradicted’ by a generalized State Department country
report.” To the extent she suggests that the IJ’s use of the
profile was wholly foreclosed by our precedent, she is
incorrect; the error we identified in Bace was that the IJ’s

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No. 04-4201 7
“entire finding” against the petitioners rested on a broad
observation in the country profile that political persecution
of individuals in Albania was rare. Id. at 1141. Here the IJ
did not rely exclusively on the country profile. Nonetheless,
we agree that there is no basis for the IJ’s finding that the
profile was inconsistent with Shtaro’s testimony. Nothing in
the profile contradicts any aspect of her recital of the events
in Vlora; moreover, its statement that the October 2000
election involved little violence nationwide despite asser-
tions of voting irregularities actually corroborates
her account of manipulated election returns followed by
“peaceful” protests.
C. “Inconsistent” Documentary Submissions
Shtaro also contests the IJ’s finding that her testimony
was inconsistent with the letter from the current Demo-
cratic Party Chairman, confirming the period of her employ-
ment with the Party, and the letters from the doctor who
treated her after the March 2 attacks. The IJ disbelieved
that any rape occurred because no rape was mentioned in
either the Chairman’s letter (which stated that Shtaro told
the Party she was leaving her job because of complications
with her pregnancy, without ascribing them to rape), or the
doctor’s letters. But adverse credibility determinations may
not be based on minor discrepancies that are easily ex-
plained, see Tolosa v. Ashcroft, 384 F.3d 906, 909 (7th Cir.
2004), and the IJ did not attempt to ascertain whether
these omissions could be accounted for. See Uwase, 349 F.3d
at 1042-43 (holding that failure to explore “possible explana-
tions” for an inconsistency “cast[s] doubt on [the IJ’s]
credibility determination”). Shtaro should not have been
discredited simply because she did not tell her employer
that she was raped. Cf. Kebede v. Ashcroft, 366 F.3d 808,
811 (9th Cir. 2004) (“victim of sexual assault does not
irredeemably compromise his or her credibility by failing to

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8 No. 04-4201
report the assault at the first opportunity”). Nor should the
doctor’s letters have been discounted as “inconsistent”
absent any showing that her failure to specify the origin
of Shtaro’s injuries was significant. See Hor, 421 F.3d at 500
(psychiatrist’s failure to mention terrorist incident as cause
of alien’s post-traumatic stress syndrome was not “reasoned
basis” for adverse credibility determination).
D. “Unreliable” Documentary Submissions
Finally, Shtaro contends that the IJ inappropriately
discredited her testimony because he suspected that her
documents were fraudulent. He specifically found that she
falsified the police report purporting to certify that she was
“arrested” on March 2 and the copies of her employment
contracts, and impugned the rest of her documents gener-
ally because she did not authenticate them in the manner
described in 8 C.F.R. § 287.6. The IJ also inferred that
because she used fraudulent documents to enter the United
States and did not seek asylum for approximately a year,
her “documentation and claim may . . . be fraudulent.” We
agree with Shtaro that none of these considerations is an
adequate basis for an adverse credibility determination.
If there was legitimate reason to think that Shtaro
submitted fraudulent documents, the IJ would have been
entitled to disbelieve her. See Hysi, 411 F.3d at 852-53;
Kourski v. Ashcroft, 355 F.3d 1038, 1040 (7th Cir. 2004).
But his skepticism concerning the police report and the
employment contracts is not supported by substantial
evidence. The IJ did not explain why he doubted that the
police would be willing to “issue a letter at the respondent’s
request” if her story was true. And we cannot see why he
thought Shtaro’s voluntary admission that she signed the
copies of her employment contracts upon receiving them in
the United States “undercut the reliability of her other
evidence.”

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No. 04-4201 9
Nor can we uphold the IJ’s decision upon his grounds
for impeaching the authenticity of her documents generally.
The IJ points out that Shtaro did not authenticate
her documents in the manner specified in 8 C.F.R. § 287.6.
But failure to so authenticate does not amount to pre-
sumptive proof of falsity. See Leia v. Ashcroft, 393 F.3d 427,
434 (3d Cir. 2005); Shire v. Ashcroft, 388 F.3d 1288, 1299
(9th Cir. 2004); Georgis v. Ashcroft, 328 F.3d 962, 969 (7th
Cir. 2003). We have also rejected the idea that an alien may
be found incredible simply because she used a false pass-
port, see Dong, 421 F.3d at 578-79; see also Yongo v. INS,
355 F.3d 27, 33 (1st Cir. 2004). And even if we were satis-
fied that Shtaro’s delay in applying for asylum was proba-
tive with respect to her claims, see Dong, 421 F.3d at 579,
it would not be sufficient in itself to support the adverse
credibility finding. See Georgis, 328 F.3d at 970 (remanding
where only one out of six reasons given by IJ for denying
petition was supported by substantial evidence).
Bearing in mind that a credibility analysis requires only
that the petitioner’s claim be internally consistent, detailed,
and plausible, see Capric v. Ashcroft, 355 F.3d 1075, 1085
(7th Cir. 2004), we conclude that the IJ’s adverse credibility
determination is not supported by substantial evidence. “A
credibility analysis should not be confused with a burden of
proof analysis, which considers and weighs all the sur-
rounding evidence.” Id.
III. Conclusion
We G RANT the petition for review and R EMAND the
case for further proceedings.

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10 No. 04-4201
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-24-06

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