UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 03-2527

NUSRET CURUMI,

Petitioner,

versus

JOHN ASHCROFT,

Respondent.

On Petition for Review of an Order of the Board of Immigration

Appeals. (A78-286-971)

Argued: November 30, 2004 Decided: January 11, 2005

Before WILKINS, Chief Judge, SHEDD, Circuit Judge, and Norman K.

MOON, United States District Judge for the Western District of

Virginia, sitting by designation.

Vacated and remanded by unpublished opinion. Chief Judge Wilkins

wrote the opinion, in which Judge Shedd and Judge Moon joined.

ARGUED: Emily Michiko Morris, JONES DAY, Washington, D.C., for

Petitioner. Anthony Cardozo Payne, UNITED STATES DEPARTMENT OF

JUSTICE, Office of Immigration Litigation, Washington, D.C., for

Respondent. ON BRIEF: Julia C. Ambrose, JONES DAY, Washington,

D.C., for Petitioner. Peter D. Keisler, Assistant Attorney

General, Civil Division, Linda S. Wendtland, Assistant Director,

Rena I. Curtis, UNITED STATES DEPARTMENT OF JUSTICE, Office of

Immigration Litigation, Washington, D.C., for Respondent. 

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
1At the time of the immigration proceedings, Curumi spoke

little or no English. Accordingly, all filings, interviews, and

testimony were facilitated by interpreters.

2

WILKINS, Chief Judge:

Nusret Curumi petitions for review of an order of the Board of

Immigration Appeals (BIA) affirming an immigration judge’s opinion.

The immigration judge (IJ) found Curumi’s testimony incredible and,

based upon this finding, denied his claims for asylum, withholding

of deportation, and relief under the United Nations Convention

Against Torture. Because we conclude that the IJ’s adverse

credibility determination, although supported by substantial

evidence, is not by itself a sufficient basis for the denial of

relief, we grant the petition for review, vacate the order of the

BIA, and remand for reconsideration.

I.

The following are the factual assertions made in Curumi’s

asylum application.1 Curumi is a native of Albania and grew up in

the city of Luzii Vogel. His family was classified by the ruling

communist regime as “kulak”--enemies of the government. Curumi was

a member of the Democratic Party and was involved in a student

group in the Albanian capital of Tirana (approximately 40 miles

from Luzii Vogel), where he took correspondence courses. In 1991,

he was arrested following a protest in Tirana and was held for 24

hours, during which time he was beaten by the police. Upon his
3

return to Luzii Vogel, he was arrested and held for three days,

during which time he was again beaten by police.

The Democratic Party came to power in 1992, and Curumi was

rewarded for his loyalty with a small store, which he converted

into a billiards parlor. As it became clear to Curumi that the new

regime was corrupt, he began to speak out against it. As a result,

police harassed Curumi’s customers, and he was arrested twice in

1992. He was beaten during both arrests; during the first, his arm

was broken.

Curumi went to Italy in 1993 and spent a year working there.

When his employment contract ended, he returned to Albania and

opened another business. Subsequently, Curumi and others began

criticizing government-sponsored investment schemes that routinely

failed. (Curumi himself invested and lost the equivalent of U.S.

$5,000 in one of the schemes.) In response, police repeatedly

harassed Curumi at his business, sometimes threatening to kill him.

He was also arrested and jailed overnight in 1995, during which

time police labeled him a traitor for opposing the government.

In 1997, police came to Curumi’s home to arrest him. Finding

Curumi absent, they arrested his father instead. Curumi

surrendered to the police the next day in exchange for his father’s

release. He was held for three days, during which time he was

beaten. The ostensible reason for the arrest was the fact that

Curumi’s automobile had been found abandoned; however, no charges
4

were filed. Shortly after this incident the Curumi family moved to

Durres, Albania, in an effort to escape harassment.

Curumi ultimately became disaffected with the Democratic Party

and became loyal to a faction of the party headed by Azem Hajdari.

He attended meetings in Kavaje, Albania, where he participated in

protests. In July 2000, he was arrested after one such protest and

jailed for three days. He was then transferred to a prison in

Durres, where he was held for 25 days. During this detention,

Curumi was beaten, and he witnessed the torture of other prisoners

through extraction of teeth with a rifle barrel and forced sexual

acts.

In August 2000, having been warned by a cousin on the police

force that his murder was being planned, Curumi entered the United

States on a false passport. Upon arrival in Chicago, Curumi told

immigration officials that his passport was false and that he

wished to obtain asylum. Thereafter, he formally sought asylum,

see 8 U.S.C.A. § 1158 (West 1999 & Supp. 2004), withholding of

deportation, see 8 U.S.C.A. § 1231(b)(3) (West 1999), and relief

under Article 3 of the United Nations Convention Against Torture

(CAT), see United Nations Convention Against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment, adopted Dec.

10, 1984, art. 3, 23 I.L.M. 1027, 1028, 1465 U.N.T.S. 85, 114.

Following a hearing at which Curumi testified, the IJ denied all

relief, concluding that Curumi’s testimony was not credible.
5

II.

We turn first to the BIA’s determination that Curumi is not

entitled to asylum or withholding of deportation. With certain

exceptions not relevant here, asylum is available to one who can

demonstrate that he is a “refugee,” 8 U.S.C.A. § 1158(b)(1), i.e.,

that he is “unable or unwilling” to return to his native 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.A. § 1101(a)(42)(A)

(West 1999). An applicant who demonstrates past persecution is

entitled to a rebuttable presumption that he has a well-founded

fear of future persecution. See 8 C.F.R. § 208.13(b)(1) (2004).

An applicant who cannot demonstrate past persecution can establish

a well-founded fear of persecution by demonstrating that he has a

subjectively genuine fear of persecution and that a reasonable

person under the circumstances would fear persecution. See Blanco

de Belbruno v. Ashcroft, 362 F.3d 272, 284 (4th Cir. 2004).

The standard for demonstrating entitlement to withholding of

removal is similar to, but higher than, the standard for asylum.

See Lukwago v. Ashcroft, 329 F.3d 157, 182 (3d Cir. 2003). Success

on a withholding of removal claim requires the alien to demonstrate

that it is more likely than not that he would be persecuted on the

basis of “race, religion, nationality, membership in a particular

social group, or political opinion.” 8 U.S.C.A. § 1231(b)(3)(A);
2Curumi attempts to turn the IJ’s credibility finding into a

legal error (subject to de novo review) by asserting that the IJ

applied an incorrect legal standard. The IJ clearly stated the

6

see Ambartsoumian v. Ashcroft, 388 F.3d 85, 88 (3d Cir. 2004). As

with an asylum claim, a showing of past persecution creates a

rebuttable presumption that the applicant will be persecuted if

returned to his native country. See 8 C.F.R. § 208.16(b)(1)

(2004).

We must affirm the decision of the BIA if it is “supported by

reasonable, substantial, and probative evidence on the record

considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481

(1992) (internal quotation marks omitted). To obtain reversal,

Curumi must demonstrate “that the evidence he presented was so

compelling that no reasonable factfinder could fail to find the

requisite fear of persecution.” Id. at 483-84. Credibility

determinations of the IJ and BIA are entitled to deference so long

as they are supported by substantial evidence. See Figeroa v. INS,

886 F.2d 76, 78 (4th Cir. 1989); see also Mastro v. Apfel, 270 F.3d

171, 176 (4th Cir. 2001) (stating that substantial evidence

“consists of more than a mere scintilla of evidence but may be

somewhat less than a preponderance” (internal quotation marks

omitted)). “[A] trier of fact who rejects a witness’s positive

testimony because in his or her judgment it lacks credibility

should offer a specific, cogent reason for ... disbelief.”

Figeroa, 886 F.2d at 78 (internal quotation marks omitted).2
correct standard, however. Therefore, there is no legal error and

the only question is whether the IJ’s credibility determination is

supported by substantial evidence.

7

Perfect consistency is not required of an asylum applicant; the BIA

has acknowledged that those who flee persecution may not have

precise recall. See, e.g., In re B-, 21 I & N Dec. 66, 70 (BIA

1995) (concluding that applicant’s testimony was not incredible

simply because he was unable to recall precise dates).

Curumi maintains that the discrepancies noted by the IJ as

supporting her adverse credibility determination are either

nonexistent or easily explained. While we agree with Curumi that

not all of the cited discrepancies support the adverse credibility

determination, ultimately we conclude that there is substantial

evidence in the record to support the IJ’s finding that Curumi’s

testimony was not credible.

The IJ noted inconsistencies in the following areas:

Education: On his asylum application, Curumi indicated that

he attended high school from September 1984 until May 1988. In

supplemental materials, Curumi indicated that he attended

correspondence courses in Tirana, which led to his involvement in

the student protest group. The IJ noted that at the hearing,

Curumi testified that “he attended night school for five years,

graduated in 1989, and then studied one-and-a-half years of

college-level agricultural studies as a correspondence student.”

J.A. 16. The IJ stated that Curumi’s inconsistencies regarding his
8

education--including his “omission” of his correspondence studies

from the asylum application--“call into question whether he

attended college, thereby making his political activity as a

university student implausible.” Id.

Detentions: The IJ generally found that Curumi “was

inconsistent in his recollection of the length, general time of

year, and circumstances of his detentions.” Id. She noted

inconsistencies in the following specific areas:

1991 arrest in Tirana: Curumi’s asylum application states

that he was arrested in February 1991 and detained for 24

hours. During the asylum hearing, however, he testified that

the detention lasted only six hours; he further stated that he

could not recall when in 1991 the detention occurred.

Additionally, Curumi testified that during this detention he

observed law enforcement officers torturing other prisoners by

removing their teeth with rifle barrels, but his asylum

application claimed that he observed this and other forms of

torture during a detention in 2000.

Further police contact in 1991: Although Curumi’s asylum

application states that he was arrested in Luzii Vogel almost

immediately after the Tirana detention, he testified at the

asylum hearing that he had no further contact with the police

in 1991. But, he also testified that he was again arrested

near “the end of 1991 or the beginning of 1992” and that
9

during this arrest his arm was broken. Id. at 24. The asylum

application does recount that the police broke Curumi’s arm,

but identifies the date of the incident as April or May 1992.

1992-1993: Curumi’s asylum application states that in July or

August 1992 he “was arrested and imprisoned .... Police

wearing black masks beat me with batons and lengths of rubber

hose.” Id. at 67. During the hearing, however, Curumi

testified that he was called to talk with the chief of police,

but not imprisoned, between the breaking of his arm in 1991-92

and when he went to Italy in 1993.

Detention after Hajdari meeting: In his asylum application,

Curumi stated that he was arrested after a July 2000 meeting

of the Hajdari faction. According to the asylum application,

Curumi was detained for three days in Kavaje, then transferred

to a prison in Durres, where he was detained for 25 days.

During the hearing, however, Curumi testified that he was held

for 24 hours in Kavaje, then for 27 days in Durres. When

questioned about this inconsistency, Curumi asserted that the

asylum application was incorrect--his three-day detention in

Kavaje took place in 1992.

The IJ concluded that Curumi’s “inconsistencies and omissions,

and his failure to provide a plausible explanation for them, cast

doubt on whether he experienced persecution in the form of

detention.” Id. at 17.
10

Democratic Party membership: In his asylum application,

Curumi stated that he “never officially renounced” his party

membership but that he “grew disenchanted” with the party and

became a part of Hajdari’s faction. Id. at 65. During the asylum

hearing, however, Curumi testified that he resigned his membership

from the Democratic Party, stopped paying his dues, and turned in

his party identification. When questioned about the discrepancy,

Curumi said he did not remember his asylum application saying that

he never renounced his party membership.

We have reviewed the record in its entirety, and in our view

the IJ made too much out of some perceived discrepancies. For

example, the IJ doubted Curumi’s involvement in the student

movement because his asylum application “omitted his studies as a

correspondence student and was inconsistent with his testimony.”

Id. at 16. However, Curumi’s participation in correspondence

studies was noted in his supplemental materials, and he provided

what appears to be a rational explanation for his failure to list

it on the asylum application (i.e., that Albanians do not consider

correspondence studies to be “school”). There was thus no

omission, and the differences between the asylum application and

Curumi’s testimony are not as significant as the IJ made them out

to be.

The same view may be taken of Curumi’s inconsistent

recollection of his 1991 arrest and detention in Tirana. It
3

The IJ made a point of noting that a doctor told Curumi his

arm was “fractured,” while Curumi stated that it was “broken.” It

is not clear that the IJ relied on this difference in making her

credibility determination. To the extent she did so, however, she

erred; “fractured” and “broken” are synonyms. Compare Random House

College Dictionary 171 (rev. ed. 1980) (defining “broken” in part

as “ruptured; torn; fractured” (emphasis added)), with id. at 524

(defining “fracture” in part as “the breaking of a bone”).

11

appears to be undisputed that Curumi was detained and severely

beaten. Nevertheless, the IJ seized on Curumi’s inability to

recall the length of his detention. While under some circumstances

an inability to recall the particulars of an event may provide a

basis for an adverse credibility determination, it is important to

bear in mind that Curumi was detained and beaten on numerous

occasions for varying lengths of time. The fact that he may have

confused the particulars of these traumatic events is not, alone,

a death knell for his credibility.3 See Zubeda v. Ashcroft, 333

F.3d 463, 476 (3d Cir. 2003) (“Caution is required [in basing a

credibility determination on differences between an asylum

application and hearing testimony] because of the numerous factors

that might make it difficult for an alien to articulate his/her

circumstances with the degree of consistency one might expect from

someone who is neither burdened with the language difficulties, nor

haunted by the traumatic memories ....”).

Despite these concerns, we nevertheless conclude that the IJ’s

adverse credibility determination is supported by substantial

evidence. For example, we cannot accept Curumi’s assertion that
12

the discrepancies concerning police detentions following the

detention in Tirana, including the date of his broken arm, are

“exceedingly minor inconsistencies” that “do nothing to detract

from [his] credibility.” Opening Br. of Pet’r Nusret Curumi at 27.

To the contrary, these inconsistencies may plausibly be viewed as

indications of Curumi’s inability to keep his stories straight.

The same may be said of Curumi’s vastly different statements

regarding his Democratic Party membership, particularly when viewed

in light of his failure to offer a cogent explanation for the

differences.

The question remains, however, whether the adverse credibility

determination is necessarily fatal to Curumi’s asylum and

withholding of deportation claims. We faced a nearly identical

situation in Camara v. Ashcroft, 378 F.3d 361 (4th Cir. 2004), and

answered that question in the negative. We find that Camara is

controlling here and that we must remand for reconsideration.

In Camara, as here, the IJ denied relief based upon an adverse

credibility determination that was supported by substantial

evidence. See id. at 368-69. While we acknowledged that an

adverse credibility determination is often fatal to an asylum

claim, see id. at 369, we noted that when “the applicant can prove

actual past persecution, ... a presumption arises that she has the

requisite level of fear of persecution, and thus she need not prove

the subjective component of ‘well-founded fear,’” for which
13

credibility is essential, id. at 369-70. Because Camara had

presented independent evidence that established past persecution

for her political beliefs, we concluded that remand was necessary:

 This independent evidence, taken together, provided

strong circumstantial evidence that Camara was imprisoned

for a political expression of opposition to the ruling

government. The IJ completely ignored this evidence,

instead rejecting Camara’s asylum petition solely on the

basis of the adverse credibility determination.

....

 In sum, while we do not disturb the IJ’s factual

finding that Camara’s recollections may not have been

wholly trustworthy, we nevertheless conclude that the IJ

erroneously overlooked Camara’s other evidence in denying

her application for asylum and for withholding of

removal. Accordingly, we vacate the BIA’s order on these

claims ... and remand for further consideration.

Id. at 370-71.

Here, as in Camara, there is substantial independent evidence

of past persecution that was not considered by the IJ. The most

compelling of this evidence consists of two medical reports

indicating that Curumi was beaten by police. Arrest reports

corresponding to the dates of the medical reports indicate that

Curumi was arrested for engaging in anti-government protests.

Curumi also presented affidavits from psychologist Karen

Hanscom and physician Bruce Slater. Dr. Hanscom diagnosed Curumi

as suffering from depression and post-traumatic stress disorder

(PTSD), the symptoms of which included avoidance of police, fear of

being killed, hypervigilance, and problems with concentration and

memory. She characterized these symptoms as “consistent with
14

symptoms seen in other individuals who have experienced physical

and emotional torture and trauma.” J.A. 36. Dr. Hanscom further

stated that Curumi’s depression and PTSD “are the direct result of

the trauma and the physical and psychological abuses that

Mr. Curumi experienced in Albania. I find the symptoms to be

consistent with the history of trauma and torture that he reports.”

Id. For his part, Dr. Slater found scars on Curumi’s legs and

scalp, the latter of which was “consistent with blunt trauma.” Id.

at 72. Dr. Slater concluded that Curumi showed signs of PTSD “as

well as physical evidence of beating with blunt objects, consistent

with the history that he has given.” Id. at 73.

Additionally, Curumi presented evidence that pro-democracy

activists in Albania regularly suffer persecution. Nicholas Pano,

a former history professor who is an expert regarding Albanian

politics, stated in an affidavit that “the events that Nusret

Curumi has described ... are consistent with political events and

conditions in Albania at the times noted in his statements.” Id.

at 38. The record also contains a 2001 State Department report on

Albania which indicates that local police officers arbitrarily

detain individuals and regularly engage in beatings. And, a May

2001 report by Amnesty International indicates that Democratic

Party supporters are routinely detained and beaten by police.

This documentary evidence, and those portions of Curumi’s

testimony that the IJ did not specifically reject, provide
15

substantial support for a finding that Curumi has suffered

persecution at the hands of the Albanian government. Cf. Camara,

378 F.3d at 370 (concluding that arrest report, party membership

card, letter from party leader, arrest warrant, and State

Department report “provided strong circumstantial evidence”

supporting claim of past persecution). If accepted, this evidence

would support both a claim for asylum and a claim for withholding

of removal. See id. Because, as in Camara, the IJ failed to

consider this independent evidence, we vacate the decision of the

BIA and remand for further proceedings.

III.

Curumi also sought relief under the CAT. As a signatory to

the CAT, the United States has pledged “not [to] expel, extradite,

or otherwise effect the involuntary return of any person to a

country in which there are substantial grounds for believing the

person would be in danger of being subjected to torture.” LopezSoto v. Ashcroft, 383 F.3d 228, 239 (4th Cir. 2004) (internal

quotation marks omitted). In order to establish eligibility for

relief under the CAT, Curumi must demonstrate that “it is more

likely than not” that he would be tortured if returned to Albania.

Id. at 239-40 (internal quotation marks omitted). “Torture is

defined as any act by which severe pain or suffering, whether

physical or mental, is intentionally inflicted on a person ... for

any reason based on discrimination of any kind ... by or at the
16

instigation of or with the consent or acquiescence of a public

official or other person acting in an official capacity.” 8 C.F.R.

§ 208.18(a)(1) (2004).

The IJ denied relief under the CAT based solely on “the

reasons cited above in the denial of Asylum,” J.A. 19, i.e.,

Curumi’s lack of credibility. However, “[b]ecause there is no

subjective component for granting relief under the CAT, [an]

adverse credibility determination ... would not necessarily defeat

[a] CAT claim.” Camara, 378 F.3d at 371. The independent evidence

that supports Curumi’s asylum claim likewise supports his claim

under the CAT. See id. at 371-72; id. at 372 (noting that IJ

violated INS regulations by failing to consider independent

evidence demonstrating likelihood of torture); see also

Ramsameachire v. Ashcroft, 357 F.3d 169, 184 (2d Cir. 2004) (“[W]e

hold that the INS may not deny an alien’s CAT claim solely on the

basis of its determination that the applicant’s testimony is not

credible.”). We therefore vacate the decision of the BIA as to the

denial of relief under the CAT and remand for further proceedings.

IV.

For the reasons set forth above, we vacate the order of the

BIA and remand for further proceedings. Additionally, as we did in
17

Camara, we recommend assignment to a different immigration judge on

remand.

VACATED AND REMANDED