May 17, 2017
for Review of an Order of the Board of Immigration Appeals.
Nos. A088-431-779, A088-431-780.
Wood, Chief Judge, and Manion and Hamilton, Circuit Judges.
Hamilton, Circuit Judge.
Cojocari, a citizen of Moldova, seeks asylum, withholding of
removal, and protection under the United Nations Convention
Against Torture. His wife Veronica Moraru is a derivative
applicant for this relief. The immigration judge denied the
application and or- dered the couple removed, and the Board
of Immigration Appeals dismissed their appeal. The couple has
petitioned for review in this court under 8 U.S.C. §
grant their petition. The Board's decision rested on the
immigration judge's adverse credibility finding. Judicial
review of credibility determinations is deferential, and
reviewing courts rarely overturn credibility findings by
agency adjudicators. Such findings are not beyond judicial
review, however. This is one of those relatively unusual
cases where the agency's credibility finding is arbitrary
and capricious. As we detail below, the immigration judge
made mountains out of molehills, fashioned inconsistencies
from whole cloth, and held Cojocari's efforts to obtain
corroborating documents against him. We remand for a fresh
assessment of Cojocari's credibility, preferably by a
different immigration judge.
Factual and Procedural Background
Cojocari's Experience with Political Persecution
Cojocari and Veronica Moraru are citizens of Moldova, a
former Soviet republic that was under Communist control as
recently as 2009. According to the U.S. Department of State,
corruption is rampant in Moldova, and torture by police and
prison officials has been widely reported.
political troubles began in 2007 while he was a student at
the Academy of Economic Studies in Chi§inau,
Moldova's capital city. Cojocari became involved with the
Ali-anta Moldova Noastra (AMN), which is translated as
"Our Moldova Alliance." AMN was a liberal
democratic group that opposed government corruption and
backed the mayoral campaign of a reform candidate.
claims that Moldovan police and other unknown parties
persecuted him because of his political activism. He says
that he was arrested and beaten on several occasions between
June 2007, around the time of the Chi§inau mayoral
election, and October 2009, shortly before he and Veronica
traveled to the United States. We describe these incidents
below, drawing from the immigration judge's decision as
well as the administrative record. The judge concluded that
Co-jocari's testimony was not credible overall, with
specific exceptions. Nevertheless, the government has
introduced no evidence actually rebutting Cojocari's
claims concerning his persecution. Cojocari, conversely, has
introduced substantial documentary evidence-including
hospital and arrest records-that corroborates his testimony
about these incidents.
says that he was first arrested on June 23, 2007. He
testified that authorities transported him to the central
police station in Chi§inau and interrogated him about
his political activities. Police also ordered him to sign a
document agreeing to become a police informant and not to
cooperate with opposition parties. He refused. Cojocari was
held overnight and repeatedly beaten. The following day, he
was released from custody and promptly checked himself into a
hospital. According to hospital records that Cojocari
submitted, he was diagnosed with blunt, closed-chest trauma
and contusions and abrasions, injuries consistent with his
report of the beatings.
was next arrested on September 28, 2007. He was again held
overnight. He testified that on this occasion, he was not
beaten but police threatened him and again pressured him to
sign some documents. Again he refused. Police then warned him
that he "took the wrong decision" and that they
would "see each other again in the near future."
eighteen months passed without further incident. In early
April 2009, Cojocari joined other AMN members in a protest
over recent parliamentary elections. The protest started
peacefully but quickly turned violent. Cojocari testified
that he did not participate in any violence. He was
nevertheless arrested and "sentenced" to a week of
detention, during which time he said he was beaten again.
Cojocari was released after nine days. He checked himself
into a hospital. Medical records show he was diagnosed with
cerebral trauma, a concussion, and various wounds and
abrasions, again consistent with his report of beatings.
Following this detention, Cojocari hired a lawyer and filed a
complaint with the general prosecutor's office in
Chi§inau. He also sought help at both AMN and Democratic
Party headquarters, but nobody was willing to help him.
Cojocari decided to lie low for a while. He and his wife
Veronica moved to her parents' home in the riverside
village of Gura Galbenei, about thirty miles outside the
August 28, 2009, Cojocari was detained yet again while
leaving the Academy of Economic Studies back in
Chi§inau. (His reasons for being present at the academy
that day are somewhat murky, as discussed below.) According
to Cojocari, police interrogated him and a detective told him
the complaint he had filed with the prosecutor had "no
value." Cojocari says he was beaten and held in a cell
for three days without food or water. After he was released,
Cojocari again went to the hospital, where records show he
was diagnosed with a closed fracture in his arm and multiple
bruises. Veronica was pregnant at the time. She met Cojocari
at the hospital and told him that government officials had
visited their home and harassed her. Veronica became so
distressed as they spoke that she became physically ill and
ultimately suffered a miscarriage. At that point, Cojocari
and Veronica decided to flee Moldova. They applied for visas
so they could travel to the United States.
incident occurred on October 25, 2009, shortly before the
couple were scheduled to depart for the United States.
Cojocari testified that he was "kidnapped" by a
group of unknown assailants who told him that people who
"ask for too much justice are viewed as unwelcome
elements in Mol-dovan society." The men beat Cojocari
until he blacked out, then left him bruised and battered in a
field. Following the attack, Cojocari received medical
treatment for more than a week. Despite that setback,
Cojocari and Veronica departed Moldova as scheduled. They
arrived in Chicago on November 6, 2009.
History of the Case
2010, well in advance of the one-year filing deadline, the
couple applied for asylum pursuant to 8 U.S.C. §
1158(b)(1)(A). They also requested withholding of removal
under 8 U.S.C. § 1231(b)(3)(A), and protection under the
United Nations Convention Against Torture ("CAT")
as implemented through 8 C.F.R. §§ 1208.16 and
asylum officer referred the couple's case to an
immigration judge. The government then began removal
proceedings against the couple under 8 U.S.C. §
1227(a)(1)(B) for overstaying their visas. The couple
conceded the charge of removability but contended that
Cojocari was eligible for asylum and related relief because
he would likely face political persecution and torture upon
his return to Moldova.
testified at a series of immigration court hearings held on
November 26, 2013; September 23, 2014; and November 5, 2014.
He supported his testimony with extensive documentation,
including numerous hospital and arrest records and an AMN
membership card (proof of his political activity, which the
immigration judge credited). Cojocari also offered a report
and testimony by Professor Igor Kotler, an historian whom the
immigration judge recognized as an expert on country
conditions in Moldova.
immigration judge denied Cojocari's application for
asylum, withholding of removal, and protection under the CAT,
and she ordered Cojocari and Veronica removed to Moldova. In
reaching her decision, the judge found that (1)
Cojocari's testimony was not credible, and (2) he
provided insufficient corroborating evidence to "meet
his burden of proof to show that the central aspects of his
claim are true." The Board of Immigration Appeals
dismissed the couple's appeal in a decision generally
agreeing with the immigration judge's reasoning. The
couple then sought review in this court.
The REAL ID Act
Secretary of Homeland Security or the Attorney General may
grant asylum to an alien who qualifies as a
"refugee." 8 U.S.C. § 1158(b)(1)(A). Refugees
are people who are unable or unwilling to return to their
native countries because of "persecution or a
well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social