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Santashbekov v. Lynch

United States Court of Appeals, Seventh Circuit

August 24, 2016

Daniiar Santashbekovich Santashbekov, Petitioner,
Loretta E. Lynch, Attorney General of the United States, Respondent.

          Argued April 6, 2016

         Petition for Review of an Order of the Board of Immigration Appeals No. A205-800-334

          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 Santashbekov's petition because substantial evidence supports the judge's and Board's credibility findings.

          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 removal 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 requirement 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 opposition parties, and it became part of a new coalition government. After the 2010 revolution, according to the U.S. State Department, Kyrgyzstan continued to face instability and human rights problems, including arbitrary arrests and torture by law enforcement and security forces.

         The immigration judge characterized Santashbekov's testimony 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 persecution by a man named Kurmanov, who Santashbekov believes 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 testified 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. Santashbekov 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 prosecuted 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 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 testimony. He made an adverse credibility determination based on the vague and sometimes contradictory nature of Santashbekov'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 immigration judge's denial, also noting inconsistencies in Santashbekov'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 immigration 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 evidence. Tawuo v. Lynch, 799 F.3d 725, 727 (7th Cir. 2015). Under that standard, we must uphold factual determinations "supported 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 administrative 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 circumstances." 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 inconsistencies. See Lishou Wang v. Lynch, 804 F.3d 855, 858 (7th Cir. 2015) (granting relief); Tawuo v. Lynch, 799 F.3d at 726 (denying 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). Santashbekov's vagueness and his failure to clarify the parts of his story the judge found implausible provided sufficient grounds to support an adverse ...

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