Tabaku, Martin v. Gonzales, Alberto R.

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 04-1689

MARTIN TABAKU and ENTELA BINO,

Petitioners,

v.

ALBERTO GONZALES, Attorney General

of the United States,

Respondent.

____________

Petition for Review of an Order of

the Board of Immigration Appeals.

Nos. A79-290-895, A79-290-896

____________

ARGUED JANUARY 21, 2005—DECIDED SEPTEMBER 29, 2005

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Before RIPPLE, WOOD, and SYKES, Circuit Judges.

WOOD, Circuit Judge. Martin Tabaku and Entela Bino,

a married couple from Albania, claim that organized

crime factions threatened both of their lives because of their

efforts to free women from Albania’s sex-slave trade. The

couple contend that their lives will be at risk if they are

forced to return to Albania. They filed for asylum, withhold-

ing of removal, and protection under the United Nations

Convention Against Torture. The Immigration Judge (IJ)

denied all relief because he concluded that the couple’s

story was not credible, a ruling the Board of Immigration

Appeals (BIA) summarily affirmed. We grant the petition

2 No. 04-1689

for review and remand the couple’s case to the agency,

because there was insufficient evidence to support the IJ’s

adverse credibility determination.

I

Through an interpreter, Martin Tabaku presented the

following account to the IJ during the hearing held on

October 1, 2002. Entela Bino, his wife, did not testify;

instead, she stayed right outside the courtroom with the

couple’s one-month-old son.

Tabaku testified that before leaving Albania in 2000, he

and his wife lived in Korçë, a small city near the Greek

border. Active in the local Eastern Orthodox church, the

couple began to help women caught in Europe’s sex-slave

trade. When these women were able to escape their captors,

the couple’s church would help them travel to their home

countries’ embassies in either Tirana, the capital of Alba-

nia, or in Greece. Tabaku corroborated this account by

submitting a number of documents discussing the sex-slave

trade in the Balkans and by providing a somewhat vague

letter from the church which stated that Tabaku and Bino

assisted “the poor and other people in need of help as

missionaries of our church.”

This work continued in secret and without incident un-

til June 5, 1999. On that day, after bringing a young girl to

the Romanian embassy in Tirana, a member of the couple’s

church group was captured on her way back to Korçë.

Tabaku testified that the driver of the car told him that he

had seen the woman raped and killed. The driver was

allowed to leave, but he was too afraid to report the crime.

Tabaku, over the driver’s protests, reported the driver’s

story to the local police. After briefly speaking with some of

the officers, Tabaku returned to the woman’s home. A few

hours later, five police officers and someone Tabaku

believed was a member of the Albanian mafia arrived at the

No. 04-1689 3

home of the woman who had been killed. The unidentified

man approached Tabaku and told him that the woman’s

murder was a warning to the church to stop interfering in

their business. The man left with the police and no investi-

gation was conducted.

Six months later, on December 15, 1999, a young Polish

woman arrived at the church. She had been beaten se-

verely, and she desperately wanted to go to the Polish

embassy. Tabaku drove her to a sister church in Tirana,

returning late in the day. Five days later, five to six police

officers arrived at Tabaku’s home. They beat him and made

him watch as they beat his father. The police then brought

Tabaku to the local police station, tied him to a chair, and

made him sit in a windowless, unlit cell for hours. Eventu-

ally one of the officers, whom Tabaku recognized from the

night of the first woman’s death, came into the cell and

began to threaten and beat Tabaku. Tabaku testified that

the man called him a Greek spy, apparently a reference to

his membership in the Orthodox church, and demanded

that Tabaku tell him “where you take those you kidnap

from us.” When Tabaku protested that he had done nothing

wrong, the officer demanded that Tabaku pay him $30,000.

Tabaku replied that he did not have the money, which

caused the beatings to resume.

After the officer threatened Tabaku’s wife and family,

Tabaku offered the officer $3,000, all of the money he had

available. The police brought Tabaku back to his house,

took the money, and said that they knew where they could

find the rest, which Tabaku took as a reference to his wife.

When Tabaku got home, he found his wife bleeding, her

clothes torn. She explained that with the help of Tabaku’s

cousin, who happened to have been with her, she had

escaped a kidnaping attempt.

A few days later, on Christmas Eve, Tabaku and his

cousin were leaving a coffee shop when someone Tabaku

4 No. 04-1689

recognized as being from the Albanian mafia opened a car

door and shot Tabaku’s cousin, killing him. The man turned

the gun on Tabaku, but he was able to escape. Tabaku went

to the police and gave them the name of the person who he

believed had killed his cousin, but they did nothing.

To corroborate the fact of the killing, the petitioners

submitted three newspaper articles recounting the mur-

der, although the details reported were not fully consis-

tent with one another. As petitioners’ counsel stated in

his closing argument, he included the articles “just to

show and to document that there was a murder . . . on

Christmas Eve, and it involved Mr. Tabaku’s cousin . . .

[and not to prove] the facts spelled out in that newspa-

per . . ., because clearly those journalists did not report

the incidences that Mr. Tabaku reported.”

Tabaku told the IJ that he feared he would be killed if

he stayed in Albania because he had identified his cou-

sin’s murderer. Tabaku testified that the murderer’s family

may have also wanted to kill him out of fear that he would

attempt to avenge his cousin’s death as part of a “blood

feud.” Fearing for his life and the safety of his family,

Tabaku moved with his wife and family from Korçë to

Tirana. After receiving a new threat in Tirana, he com-

plained to the police there, but they told him that events in

Korçë were outside their jurisdiction.

Afraid and finding no protection from the authorities,

Tabaku’s brother and father moved to an undisclosed town

in Albania. The couple crossed into Greece and eventually

arrived in the United States.

The IJ denied the couple’s request for asylum, withhold-

ing of removal, and relief under the Convention Against

Torture because he found that Tabaku’s testimony was not

credible. (The couple have abandoned their request for relief

under the Convention Against Torture by failing to raise it

in their opening brief. See, e.g., Balogun v. Ashcroft, 374

No. 04-1689 5

F.3d 492, 498 n.7 (7th Cir. 2004).) We can glean from the

IJ’s oral opinion five reasons why he disbelieved Tabaku’s

testimony. First, the IJ found a “very cardinal error or

omission on the part of the respondent, in not presenting

his spouse to testify as an occurrence witness as to possible

occurrences that took place to her knowledge, . . . which

would or may have corroborated the respondent’s testi-

mony.” Second, the IJ thought that the church’s letter in

support of Tabaku and Bino was too sparse to support

Tabaku’s story. In response to Tabaku’s argument that the

church wanted to keep its anti-sex- trafficking work a secret

and therefore was deliberately vague in its letter, the IJ

stated, “They would have us believe that a priest or a

bishop, when he has a moral and legal obligation to help a

parishioner, would refrain to do so, [which] also seems mind

boggling.” Third, for similar reasons, the IJ did not believe

that the driver of the church vehicle carrying the woman

who had been raped and murdered would be so afraid to

report the crime to the police: “If, in fact, these are Chris-

tians who assert their Christian faith, they have not only a

moral obligation, but they have a legal obligation to report

these incidents.” Fourth, the IJ did not believe that

Tabaku’s father and brother were in hiding. The IJ found it

“baffling” that “in this type of community in Albania, where

everyone knows where everyone is, that somehow or

another, the father and the brother’s identity and location

[could be] secreted away from this alleged mafia.” Finally,

the IJ discredited Tabaku’s version of his cousin’s murder

because of the three contradictory newspaper articles

the couple submitted with their application. According to

the IJ, Tabaku’s story was “contradicted by his own docu-

mentary evidence, which is also baffling.”

II

The petitioners appeal the IJ’s conclusion on two grounds.

First, they argue that the IJ infringed their due process

6 No. 04-1689

rights by using the verb “badger” to describe the level of

intensity allowed during cross-examination, which scared

Bino into not testifying. Second and more centrally, they

assert that there was insufficient evidence to support the

IJ’s adverse credibility determinations.

There is no question that non-citizens in the petitioners’

position are entitled to due process, see Zadvydas v.

Davis, 533 U.S. 678, 693 (2001), but we agree with the

BIA that the IJ did not impinge those rights here. As

the BIA concluded, “while we consider the Immigration

Judge’s use of that word to be incorrect, we cannot find that

the misstatement in question is grounds for finding a due

process violation requiring remand and rehearing of the

evidence.” To establish a due process violation, an asylum

petitioner must show that the alleged procedural violation

might have made a difference in the outcome of the proceed-

ings. Shahandeh-Pey v. INS, 831 F.2d 1384, 1389 (7th Cir.

1987). The couple argues that the use of the word “badger”

scared Bino and prevented her from testifying. Their

counsel conceded at oral argument, however, that Bino was

caring for her child outside the hearing room when the IJ

made this statement. Thus, it is unlikely that she even

heard the word when it was uttered. Furthermore, the

couple have not proffered any evidence that Bino would

have provided that would have added materially to

Tabaku’s testimony.

With the exception of its comment on the petitioners’ due

process claim, the BIA adopted and affirmed the IJ’s rul-

ing without issuing an opinion. See 8 C.F.R. § 1003.1(e)(4).

We therefore review the IJ’s decision directly. See, e.g.,

Lin v. Ashcroft, 385 F.3d 748, 751 (7th Cir. 2004). To qualify

for asylum, the couple must establish that they are “refu-

gees,” as defined by the Immigration and Nationality Act

(INA). See 8 U.S.C. § 1101(a)(42)(A) (defining “refugee” as

“any person who is outside any country of such person’s

nationality . . . who is unable or unwilling to return to . . .

No. 04-1689 7

that 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 opin-

ion”). Establishing the right to withholding of removal is

more difficult than proving an asylum claim. To receive

asylum, the couple need show only that there is

a reasonable possibility of future persecution, see INS

v. Cardoza-Fonseca, 480 U.S. 421, 440 (1987); Ahmad v.

INS, 163 F.3d 457, 460-61 (7th Cir. 1999), but to qualify for

withholding of removal, the couple must demonstrate that

there is a “clear probability of persecution” upon their

return to Albania. See INS v. Stevic, 467 U.S. 407, 413

(1984); Lin, 385 F.3d at 751.

We review the IJ’s conclusions under the substantial

evidence standard, meaning they will be upheld so long

as they are “supported by reasonable, substantial, and

probative evidence on the record considered as a whole.”

INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992); Ahmed

v. Ashcroft, 348 F.3d 611, 615 (7th Cir. 2003). While

deferential, the substantial evidence standard is not the

functional equivalent of no review at all. “[W]e will not

automatically yield to the IJ’s conclusions when they are

drawn from insufficient or incomplete evidence.” Georgis v.

Ashcroft, 328 F.3d 962, 968 (7th Cir. 2003). IJs must

support their credibility determinations with “specific

cogent reasons” that “bear a legitimate nexus to the find-

ing.” Ahmad, 163 F.3d at 461. We cannot uphold credibility

assessments unmoored from the record, based on nothing

but the IJ’s personal speculation or conjecture. See

Korniejew v. Ashcroft, 371 F.3d 377, 383 (7th Cir. 2004)

(citing Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002)).

As noted above, the IJ articulated five reasons why he

believed Tabaku was lying. We consider them one at a time.

First, the IJ stated that he “must assume” that Bino’s

failure to testify was part of the couple’s trial strategy,

having concluded that she would not be able to “withstand

8 No. 04-1689

cross-examination.” This suggests that the IJ was applying

the so-called missing witness rule found in traditional civil

litigation, which provides that “when a party can call a

witness to shed light on an event, but chooses not to, an

inference arises that the witness’ testimony, if produced,

would be unfavorable.” Multi-Ad Services, Inc. v. NLRB, 255

F.3d 363, 371 n.1 (7th Cir. 2001). The requirements for the

use of the rule are more stringent in criminal cases, see

United States v. Brock, 417 F.3d 692, 699 (7th Cir. 2005)

(before instruction will be given against the government,

defendant must show that the witness was peculiarly

within the government’s power to produce, that the testi-

mony would have shed light on the issues in the case, and

that it would not have been cumulative). This rule, how-

ever, assumes that the proceeding, whether a civil one or a

criminal one, is one that employs the classic adversary

system, in which each side is exclusively responsible for

presenting its own case. Immigration proceedings, as we

have observed in the past, are different:

An IJ, “unlike an Article III judge, is not merely the

fact finder and adjudicator but also has an obligation to

establish the record.” Yang v. McElroy, 277 F.3d 158,

162 (2nd Cir. 2002); see also Richardson v. Perales, 402

U.S. 389, 410 (1971) (holding that an administrative

law judge acts as “an examiner charged with developing

facts”).

Hasanaj v. Ashcroft, 385 F.3d 780, 783 (7th Cir. 2004).

In these special circumstances, there was no reason for

the IJ to draw any inference, positive or negative, from the

fact that Bino was sitting outside the room. Had he per-

ceived a gap in the record, she was functionally available to

be called at any time and thus was not “missing.” The IJ

had no basis in the situation presented here for concluding

that Tabaku’s failure to call her into the room undermined

his credibility.

No. 04-1689 9

Second, the IJ found the letter from the church too

vague to support Tabaku’s claim that he was helping

women escape from the sex-slave trade. The judge dis-

missed Tabaku’s explanation that the church wanted to

keep its work a secret with the observation that the notion

that “a priest or a bishop, when he has also a moral and

legal obligation to help a parishioner, would refrain to do so,

[ ] seems mind boggling.” There is certainly no basis in the

record to support the IJ’s personal belief that an Albanian

priest would obviously risk his entire congregation at home

by providing a detailed statement of the dangerous role the

Church was playing to help the victimized women, just to

assist a distant parishioner in his asylum claim. There is a

difference between something that merely fails to support

a claim and something that affirmatively undercuts the

claim. The worst one can say of the church’s letter is that it

fell in the former category.

Third, and similarly, the IJ did not believe Tabaku’s

testimony that a church driver would fail to report to the

local police his witnessing a rape and murder. Again, the IJ

based this conclusion on the fact that the driver was

a Christian who (in the IJ’s view) had “not only a moral

obligation, but . . . a legal obligation to report these inci-

dents.” Notwithstanding the IJ’s concept of what it means

to be a Christian, there is plenty of evidence that even

in the United States, where there may be no obvious threat

to the witness’s life, crimes go unreported. In 2001, for

example, the Department of Justice estimated that approxi-

mately half (50.6 percent) of violent crimes go unreported.

See Department of Justice Bureau of Statistics, Criminal

Victimization in the United States, 2001 Statistical Tables,

Table 91b, available at http://www. ojp.usdoj.gov/bjs/

pub/pdf/cvus01.pdf. The IJ’s assumption that the driver’s

decision not to report the crime somehow undercut Tabaku’s

version of the events has no basis in hard facts. Witnesses

can be intimidated, here as well as in other countries, and

10 No. 04-1689

Tabaku provided a convincing reason why this driver may

have been deterred from speaking up.

Fourth, the IJ did not believe that Tabaku’s father and

brother were in hiding. The IJ found it “baffling” that “in

this type of community in Albania, where everyone knows

where everyone is, that somehow or another, the father and

the brother’s identity and location [could be] secreted away

from this alleged mafia.” The government did not present

any evidence to the IJ concerning the Albanian mafia’s

omniscience. Tabaku told the IJ that his father and brother

had moved from Korçë to an undisclosed town in Albania.

According to the latest figures, there are 3.6 million people

living in Albania over an area of 28,748 square kilometers

(slightly larger than Maryland). See CIA Factbook, 2005,

available at http://www.cia.gov/

cia/publications/factbook/geos/al.html. Absent any informa-

tion in the record to the contrary, we find it entirely

possible that Tabaku’s family could escape the Albanian

mafia’s detection. Although it is the provenance of the IJ to

determine which plausible explanation is correct, we will

not uphold an IJ’s speculative alternative if it has no basis

in the record.

Finally, the IJ discredited Tabaku’s version of his cousin’s

murder because the three newspaper articles the couple

submitted with their application were contradictory.

Tabaku explained that he submitted the articles solely to

corroborate the fact of his cousin’s murder, not the exact

circumstances surrounding the killing. As their counsel

admitted, “those three newspapers, taken by themselves,

contradict one another dramatically.” Given the inconsisten-

cies in the articles, it is doubtful that the IJ could distill any

concrete information to compare to Tabaku’s version of

events. See Korniejew, 371 F.3d at 386 (noting with disfavor

“the increasing reliance by the BIA and IJs upon perceived

inconsistencies in testimony and lack of corroboration as the

basis for adverse credibility determinations”). Even if we

No. 04-1689 11

were to find that the articles’ inconsistencies made

Tabaku’s testimony less believable, we would not feel

confident affirming the removal order on such flimsy

grounds. Cf. Georgis, 328 F.3d at 970 (“[H]aving found that

the other five reasons given by the IJ for discrediting [the

petitioner] are either unsupported by the evidence in the

record or based on incomplete or improperly excluded

evidence, we are not inclined to defer to his credibility

determinations on this remaining sixth ground alone.”).

The couple’s claim failed because the IJ concluded Tabaku

was lying. In some cases, we may uphold an IJ’s opinion

even if we disagree with his adverse credibility determina-

tions, because we find adequate the IJ’s conclusion in the

alternative that, for example, the petitioner did not show

that he was a member of a protected group. We cannot do

that in this case. Disbelieving the couple’s persecution

claims, the IJ concluded the couple fled Albania for “eco-

nomic reasons.” He thus did not “consider the respondent’s

flight relative to a membership in a particular social group

or for political opinion.” Since the IJ’s opinion did not reach

the question whether the petitioners fall within a protected

group, but rested almost entirely on an adverse credibility

determination that the record does not support, we must

vacate the removal order. The couple may or may not have

a valid asylum claim, but it is not for us to determine that

ultimate question, nor was the BIA entitled to do so based

on the flawed record before it.

III

Because we find insufficient evidence to support the IJ’s

adverse credibility determination, we GRANT the petition for

review, VACATE the removal order, and REMAND for further

proceedings consistent with this opinion.

12 No. 04-1689

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—9-29-05