Donald Hanaj v. Alberto R. Gonzales

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1836
D ONALD H ANAJ ,
Petitioner,
v.
A LBERTO R. G ONZALES ,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A77-839-228
____________
A RGUED N OVEMBER 28, 2005—D ECIDED M AY 3, 2006
____________
Before K ANNE , R OVNER , and W OOD, Circuit Judges.
R OVNER , Circuit Judge. Petitioner, Donald Hanaj,
entered the United States without admission, parole or
inspection through Canada, and applied for asylum in 1999.
The asylum application was also considered as a request for
withholding of removal and for protection under the United
Nations Convention Against Torture. The immigration
judge denied his application, and ordered him removed, and
the BIA summarily affirmed. Hanaj now seeks relief from
this court.

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2 No. 05-1836
I
At the hearing, the immigration judge was presented with
the testimony of Hanaj, as well as that of numerous wit-
nesses. We turn first to Hanaj’s testimony.
Hanaj testified that he is an ethnic Albanian who was
born in Gjilan, Kosovo, on May 19, 1980, and resided there
until April 1998 when he was forced to leave due to persecu-
tion by Serbian officials. His father was an active member
in the League Democratic of Kosovarian (“LDK”), a political
party opposed to Serbian rule over Kosovo, and Hanaj and
his brother later became members as well. When Hanaj was
ten or eleven years old, his father moved to Germany
because the Serbian special police sought to kill him for his
political activities. Hanaj’s brother, Eduard, was later
forced to leave as well, and he ultimately obtained asylum
in England. The police searched Hanaj’s home on several
occasions for evidence relating to the departure of his father
and brother, and threatened to burn down the home if they
found anything incriminating. Hanaj formally joined the
LDK in 1996 when he was sixteen, and received a member-
ship card. At the hearing, Hanaj was questioned as to why
his membership card contained the dates of 1992 to 1995.
He testified that the LDK used old cards because they
lacked the means to make new ones.
In 1996, several police officers approached Hanaj on the
street, speaking to him in Serbian. When he responded to
them in Albanian, they became angry and hit and kicked
him for ten minutes, leaving scars on his lip and shin.
Hanaj went to the Serbian-run hospital, but was refused
treatment because he was Albanian. A few months later, a
vehicle Hanaj was driving was stopped at a police roadblock
and searched, and LDK leaflets were found under the car
seat. Hanaj and his friends were then transported to the
police station, where they were separated. Hanaj was then
questioned about LDK and his father. He denied any

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No. 05-1836 3
involvement with LDK, and foreswore knowledge of his
father’s whereabouts. Hanaj also refused to identify LDK
members whose pictures he was shown. During this
interrogation, he was first struck repeatedly on his head.
The police then handcuffed him and chained the handcuff
to a hook on the wall, leaving him hanging by the chain. He
was then beaten with a whip and a wooden stick. When he
began to fade in and out of consciousness, the police
removed him from the wall and beat the soles of his feet
with a wooden stick until they were bleeding and swollen.
He was subsequently placed in a cell which contained water
and salt on the floor to exacerbate those wounds. Three
days later, Hanaj found himself at a hospital, but had no
recollection as to how he got there or what transpired in the
interim. It took a month of care at home before Hanaj
recovered from those injuries.
Hanaj had yet another violent encounter with the
police when he was about seventeen years old, after a
search at a roadblock again yielded banned materials
including LDK leaflets and a book about Kosovo. He was
interrogated, hit with wooden sticks and a riding crop, and
once again placed in a basement cell. This aggravated his
prior injuries.
In November 1997, Hanaj and approximately 1,000 other
ethnic Albanians gathered in a demonstration led by the
leader of the local LDK, to celebrate Albanian flag day.
When the Serbian police tried to break up the demonstra-
tion, the Albanians responded by throwing rocks, and the
Serbian police then shot into the crowd. One of Hanaj’s
close friends, Naim Frasheri, was hit by a bullet. Hanaj and
his friends took Naim to Hanaj’s house, where Naim died
shortly thereafter.
The final event precipitating Hanaj’s departure occurred
in April 1998, when his father unexpectedly returned home.
Shortly after his arrival, Hanaj’s mother responded to a
knock at the door. Upon opening the door, she encountered

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4 No. 05-1836
the Serbian police, who struck her on the head with the butt
of a gun, and she fell to the ground unconscious. The police
kicked Hanaj’s father and then searched him, finding an
Albanian flag and a book by a national LDK leader. When
Hanaj’s father spit on the police, they shot and killed him.
At that time, Hanaj fled to his uncle’s house, where his
uncle gave him some money and sent him to a cousin in
Macedonia. Because many Serbs lived in Macedonia, his
cousin recommended that Hanaj continue on to Greece.
After arriving in Greece, Hanaj contacted his uncle and
learned that his parents had both died and that a warrant
for Hanaj’s arrest had been left at Hanaj’s home.
Eventually, Hanaj traveled to Canada by ship. Once
there, he climbed under a truck and hid in the space
where a spare tire is normally kept. The truck crossed the
border into the United States, and when it slowed to a near
stop, Hanaj jumped out. He made his way by bus from that
location in Plattsburg, New York, to Chicago.
In support of his asylum application, Hanaj introduced
his birth certificate, the arrest warrant that his uncle
mailed to him in Greece, his LDK membership card, and the
international driver’s license that he had with him when he
fled Kosovo. He further presented the testimony and
affidavits of many witnesses to corroborate his claim of
torture and persecution. Among those was the affidavit of
Dr. James Sanders, who documented scars on Hanaj’s heel,
head, shoulder, back, palms and leg consistent with his
allegations of the beatings. Dr. Sanders is a board-certified
family physician, who has worked at the Center for Victims
of Torture in Minneapolis, Minnesota, and established the
Advocates of Survivors of Trauma and Torture in Baltimore,
Maryland. He received post-graduate education in the
examination, diagnosis and treatment of torture survivors
at Harvard and Columbia universities. He also served as a
program officer for a large international relief operation in
Kosovo in 1996-97. Hanaj further submitted an affidavit of

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No. 05-1836 5
Alison Duncombe, a physical therapist who spent four
sessions with Hanaj to treat him for back, leg, and neck
pain and frequent headaches.
Hanaj also presented testimony from Julie A. Mertus, a
human rights professor and a specialist on country condi-
tions in Kosovo. Mertus testified that Hanaj’s description as
to the type of torture he experienced was consistent with
the descriptions provided during that time period
by numerous ethnic Albanians in Kosovo who Mertus
had interviewed, especially his experience in being beaten
on the bottom of the feet and placed in wet cells. Mertus
testified as to her belief that the Serbian police were trained
to act in a specific way and that there was a pattern and
practice to the type of torture Hanaj experienced. Her
testimony further detailed her extensive experience in
Kosovo, including as the author of a book on Kosovo based
on ten years of study and extensive field work. She was
asked to participate on a task force convened by the White
House on the future of Kosovo, and visited Kosovo on a
NATO-sponsored trip.
In addition, Hanaj introduced the testimony of Dr. Steven
Patt, a psychiatrist who had been treating Hanaj once or
twice a month for approximately fifteen months as of the
time of the hearing, for a total of approximately 20-25
sessions of 50 minutes each. Dr. Patt diagnosed Hanaj as
definitely suffering from post-traumatic stress disorder
(“PTSD”), and after 10 months of treatment had prescribed
medication for Hanaj to ease the symptoms. Dr. Patt
testified that he does not doubt the truth of what Hanaj
described to him regarding his experiences in Kosovo. Dr.
Patt added that in his profession, he listens to patients with
the understanding that they are not always truthful, but
that he found Hanaj to be very reliable. Throughout the
many months of treatment, Hanaj was detailed in describ-
ing what happened and was consistent in that Dr. Patt did
not hear anything from him that conflicted with anything

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6 No. 05-1836
heard at a different time, including his descriptions of the
beatings by the police, the fatal shooting of his friend, and
the deaths of his parents. Moreover, Dr. Patt further stated
that Hanaj’s descriptions were plausible and that every-
thing in his clinical picture fit with what Dr. Patt heard
from Hanaj. In addition, Dr. Patt stated that Hanaj’s
descriptions were consistent with the persecution that other
Kosovar patients had described to him in his practice. Dr.
Patt’s experience with other torture victims stemmed from
his volunteer work at the Marjorie Kovler Center for the
Treatment of Survivors of Torture (“Kovler”), which referred
torture and abuse victims in need of psychiatric treatment
to him. Through Kovler, Dr. Patt had treated four patients,
including three torture victims who were ethnic Albanians
from Kosovo. An affidavit from Mario Gonzalez, the clinical
supervisor at Kovler, revealed that Gonzalez spent four
sessions with Hanaj of three hours each, and that he
concluded that Hanaj was suffering from PTSD and referred
him to Dr. Patt for treatment.
Hanaj presented other corroborating testimony as well.
Kelly Lynn Maynard, a linguist, testified as to an analysis
of Hanaj’s speech, concluding that it was consistent with the
speech of persons in Southeastern Kosovo, specifically
Gjilan. The government did not contest her qualifications as
an expert or the admissibility of her testimony, but cross-
examined as to her conclusions. Hanaj also presented an
affidavit from his brother as to where they were born and
lived and the activities on behalf of the LDK, and included
a copy of his brother’s passport, driver’s license and visa
listing his brother’s birthplace as Kosovo.
The government presented two witnesses. Gideon Ep-
stein, an expert document examiner from the federal
government’s Forensic Document Laboratory, examined the
documents submitted by Hanaj. After comparing Hanaj’s
birth certificate to four authentic birth certificates in FDL’s
files, Epstein concluded that the birth certificate was a

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No. 05-1836 7
fabricated document. Epstein also concluded that the
international driver’s license was a very poor quality
counterfeit. The FDL files did not contain documents
similar to the arrest warrant and the LDK membership
card, so Epstein reached no conclusion as to the validity
of those documents.
The second government witness was Claudia H. Field, the
asylum officer who interviewed Hanaj for approximately 1-
1½ hours with the assistance of an interpreter provided by
Hanaj. Officer Field testified that she conducts more than
one interview a day, and takes notes which she uses to
write a report two to five days later. Officer Field concluded
that Hanaj was not credible based on a number of inconsis-
tencies between Hanaj’s application and his responses to
her questions during the interview. Among those inconsis-
tencies were that: Hanaj stated that on April 11, 1997, the
second time he was stopped at a roadblock, he showed the
police his international driver’s license, but the driver’s
license was issued four days later on April 15; Hanaj stated
that he refused to go to the hospital on April 11 after the
detention and beating but the asylum application indicates
that he went to the hospital and was denied treatment;
Hanaj was inconsistent in the dates that his father had left
home; Hanaj claimed to join the LDK in 1996 but the
membership card was dated 1992 to 1995; and Hanaj was
inconsistent in explaining how he crossed the border from
Canada to the United States. In response to questioning,
Officer Field acknowledged that Hanaj was consistent in his
description of the times he was stopped, beaten and tor-
tured by the Serbian police, and the day his parents were
killed. She further acknowledged that the types of beatings
described by Hanaj are consistent with her knowledge of
how Serbian police treated ethnic Albanians according to
the Country Condition Reports from Kosovo. She did not
ask Hanaj whether he had scars from the beatings, and
therefore the physical corroboration of his description of
events was not a part of her credibility determination.

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8 No. 05-1836
II
In order to succeed on a claim for asylum, an applicant
must demonstrate that he is unable or unwilling to re-
turn to his country 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); see Hernandez-Baena v.
Gonzales, 417 F.3d 720, 722-23 (7th Cir. 2005). An applicant
who demonstrates past persecution is entitled to a
rebuttable presumption of a well-founded fear of future
persecution. Id.
The immigration judge began by reciting the above
testimony and evidence in his decision. He held that the
incidents described by Hanaj in his application and testi-
mony clearly indicated a level of mistreatment that rises to
the level of persecution, and therefore that the critical issue
was whether his claim was credible. In assessing credibility,
however, the IJ based his decision almost entirely on the
determination by Epstein that the birth certificate was not
genuine. The IJ relied on In re O-D-, 21 I. & N. Dec. 1079,
(BIA 1998), quoting it as holding that “ ‘presentation by an
asylum applicant of an identification document that is
found to be counterfeit by forensic experts not only discred-
its the applicant’s claim as to the critical elements of
identity and nationality, but, in the absence of an explana-
tion or rebuttal, also indicates an overall lack of credibility
regarding the entire claim.’ ” IJ Op. at 9. The IJ noted that
Hanaj’s birth certificate was determined to be a “known
counterfeit,” and that Hanaj had submitted “other docu-
ments of questionable authenticity, including the LDK
membership booklet.” Id. at 10. The court also noted
without further explanation that “there are additional
credibility concerns based upon inconsistencies and
implausibilities contained in the record and cited
above”—which presumably related to the inconsistencies
noted by the asylum officer. Id. Based on In re O-D-, the IJ

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No. 05-1836 9
determined that Hanaj had not presented a credible claim.
Because the BIA affirmed without opinion, we review the
IJ’s decision to determine whether it is supported by
substantial evidence, and must affirm if the decision is
supported by reasonable, substantial and probative evi-
dence on the record considered as a whole. Tolosa v.
Ashcroft, 384 F.3d 906, 908 (7th Cir. 2004).
In Kourski v. Ashcroft, 355 F.3d 1038, 1040 (7th Cir.
2004), we explicitly rejected the application of In re O-D-
used by the IJ in this case, holding that absent reason to
believe that the applicant knew or suspected the forgery,
proof that a document was a forgery would not be evidence
that the applicant was lying. The applicant in Kourski
asserted that he was born in Russia and was persecuted
because he was Jewish. The only evidence that he presented
as to his Jewish identity other than his sworn testimony
was a copy of a purported Russian birth certificate listing
his nationality as Jewish. Id. at 1038. We noted that the
testimony of an applicant, if believed, can be sufficient in
itself to sustain a burden of proof without corroboration,
and therefore that discrediting of the corroboratory evidence
did not necessarily doom the claim. Id. at 1039. In Kourski
the IJ did not fault Kourski for lack of corroboration, but
instead concluded that the forgery demonstrated that he
was not a credible witness. It was that leap of logic that we
criticized in Kourski, and that the IJ similarly made in the
present case. As we held in Kourski, the forged nature of a
document undermines an applicant’s credibility only if the
IJ concludes that the applicant knew or suspected the
document had been forged. Id. at 1039-40. In fact, even in
that circumstance, an innocent explanation is possible, for
an applicant lacking evidence of his true identity might be
tempted to procure fraudulent documentary evidence to
avoid returning to a place of persecution, but an IJ would
not be required to draw that conclusion. Id. at 1040.
However, absent a determination that the applicant had

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10 No. 05-1836
reason to know that the document was forged, “its existence
does not undermine his credibility, though it deprives his
testimony of the extra boost to credibility that it would have
if it were corroborated.” Id.
The IJ in this case made no finding that Hanaj knew or
had reason to know that the birth certificate was forged.
That is not surprising given that Hanaj’s uncontroverted
testimony was that the birth certificate was obtained by his
mother who told him she had obtained it from a government
agency when he was about thirteen or fourteen years old,
and it was sent to him by his uncle after he fled to Greece.
Those circumstances are indistinguishable from that in
Kourski. Id. at 1038.
In fact, the IJ’s use of the inauthentic birth certificate to
discredit Hanaj’s claim in its entirety is more egregious,
because the IJ relied on the fraudulent nature of the
document to discredit not just Hanaj’s testimony, but the
corroborating testimony of all of his witnesses as well. In
Kourski, the applicant presented only his own testimony
and the birth certificate to establish his identity. Hanaj,
however, presented substantial evidence corroborating
his claim to be an Albanian persecuted in Kosovo who
was persecuted because of his status, all of which was
ignored by the IJ in making the credibility determination.
That included testimony that the type of torture he de-
scribed was reflective of the experience of other ethnic
Albanians in Kosovo during the same time period, including
details such as the use of wooden sticks to beat the bottoms
of feet and then the placement in a cell with salt water on
the ground. Hanaj’s recitation of the details of that torture
was consistent over a fifteen-month period, and approxi-
mately 20 hours, of therapy. Moreover, his allegations were
considered credible by his treating psychiatrist and by the
clinical supervisor at Kovler. His identity was confirmed by
his brother, who had himself sought and obtained asylum
in England. Significantly, Hanaj even possessed physical

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No. 05-1836 11
corroboration of his testimony, in the form of scars on his
heel, head, shoulder, back, palms and leg consistent with
his allegations of torture.
Inexplicably, the IJ did not mention any of this testimony
and evidence in his credibility determination. In fact, the
IJ’s only reference to the rest of the significant evidence of
record was his off-hand reference to inconsistencies in the
record, which appears to refer to the asylum officer’s
recitation of inconsistencies between his application and
oral statements. That reliance is misplaced. The alleged
inconsistencies referenced by the asylum officer relate to
insignificant matters, not the type of statements material
to his claim. Moreover, Officer Field acknowledged that
Hanaj was consistent in his description of the detentions,
beatings, torture and his parents’ deaths—all of the acts
forming the basis of his persecution claim. In relying on
purported inconsistencies, the IJ relied on the hour-long
interview with Officer Field, but inexplicably failed to
mention Dr. Patt’s testimony that Hanaj was consistent and
detailed in his descriptions of the events over the 50-minute
weekly and bi-weekly sessions with Dr. Patt, spanning a 15-
month period. We have repeatedly held that trivial inconsis-
tencies are not a basis for discrediting testimony. Iao v.
Gonzales, 400 F.3d 530, 532 (7th Cir. 2005); Balogun v.
Ashcroft, 374 F.3d 492, 504 (7th Cir. 2004)
(“[i]nconsistencies that do not relate to the basis of the
applicant’s alleged fear of persecution are less probative
than inconsistencies that do.”) Inconsistencies such
as whether he showed the international driver’s license
or his Kosovo driver’s license at the police roadblock are
precisely that type of trivial inconsistency, and that is true
of the inconsistencies targeted by Officer Field as a whole.
An IJ must analyze inconsistencies against the backdrop of
the whole record, as one factor in the overall credibility
determination. Balogun, 374 F.3d at 504. No such examina-
tion occurred here, as the IJ did not even mention the

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12 No. 05-1836
testimony of Hanaj’s witnesses in reaching his credibility
decision. The IJ cannot selectively examine evidence in
determining credibility, but must present a reasoned
analysis of the evidence as a whole. Instead, the IJ in this
case used the allegedly forged nature of the documents to
negate the credibility of the claim as a whole, and to negate
the relevance of all other corroborating evidence presented.
That goes beyond even the improper use in Kourski, and
must be rejected for the same reason. The denial of asylum
lacks a reasoned basis, and therefore the order of removal
is vacated and the case returned to the immigration
authorities for further proceedings consistent with this
opinion. Although the choice of presiding judge is left to the
discretion of the BIA, we urge that the BIA assign the
matter to a different judge on remand. See Circuit Rule 36
of the United States Court of Appeals for the Seventh
Circuit; see also Gjerazi v. Gonzales, 435 F.3d 800, 813 (7th
Cir. 2006), Kerciku v. INS, 314 F.3d 913, 919 (7th Cir.
2003). Petitioner Hanaj may recover his costs in this court.

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No. 05-1836 13
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-3-06

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