In the

United States Court of Appeals

For the Seventh Circuit

No. 06-4107

ALBERT MUSOLLARI and VERGJINUSH MUSOLLARI,

Petitioners,

v.

MICHAEL B. MUKASEY, Attorney General

of the United States,

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals.

Nos. A95-395-303 & A95-395-304

ARGUED SEPTEMBER 18, 2007—DECIDED SEPTEMBER 19, 2008

Before EVANS, WILLIAMS, and SYKES, Circuit Judges.

SYKES, Circuit Judge. Albert Musollari and his wife,

Vergjinush, are natives and citizens of Albania who

entered the United States in 2001 on visitor’s visas. They

overstayed and then sought asylum, withholding of

removal, and protection under the Convention Against

Torture (“CAT”). An Immigration Judge (“IJ”) denied their
2 No. 06-4107

Vergjinush Musollari’s application was derivative of her 1

husband’s. See 8 U.S.C. § 1158(b)(3)(A) (“A spouse or child . . . of

an alien who is granted asylum under this subsection may, if

not otherwise eligible for asylum under this section, be

granted the same status as the alien if accompanying, or

following to join, such alien.”).

application, finding Musollari’s testimony incredible, and

the Board of Immigration Appeals (“BIA”) affirmed.

Because the decisions by the IJ and the BIA are supported by substantial evidence and the record does not

compel a contrary conclusion, we deny the Musollaris’

petitions for review.

I. Background

The Musollaris came to the United States from Albania

in January 2001 on visas that permitted them to stay for

six months. They have two children: Kevin, who was born

in Albania, was left behind and remains there; and

David, who was born in the United States. The Musollaris

did not return to Albania by their departure date and

subsequently filed an application seeking asylum, withholding of removal, and protection under the CAT. The 1

petition was rejected by an asylum officer, and the

Musollaris appeared before an IJ for removal proceedings.

At the hearing Musollari recounted a history of hardships he said he and his family had suffered as a result

of his involvement in Albanian politics. What follows is

a summary of his testimony.
No. 06-4107 3

Musollari served in the Albanian military during the

final days of communist control in the early 1990s. In

1991 Musollari disobeyed a direct order from his superior

officer to fire on a group of civilians who were attempting

to flee the country by boat. Fearing reprisal for his disobedience, Musollari boarded the boat with the civilians;

it was bound for Italy. Italian officials, however, returned

Musollari and other soldiers to Albania, and upon their

return he and the others were arrested and beaten by

Albanian officials.

In 1992 the communist government fell and the Democratic Party, of which Musollari is a member, took power.

That party’s electoral superiority lasted until 1997 when

the Socialist Party swept the elections. Musollari, however,

claimed that the Socialists seized the reins of power “by

force of arms,” through violence and intimidation. He

testified that he became a target of these tactics after he

gave a speech at a protest rally in his hometown of

Korcë. Musollari was forced to flee, and his home was

ransacked during his absence. His neighbors told him

the police, not random intruders, were the culprits.

Musollari was arrested in October 1997 and again in

September 1998. He testified that he was beaten during

these detentions and interrogated about his activities in

the Democratic Party; he also said the police tried to

force him to spy on other members of the party. The police

arrested Musollari again in November of 2000, after he

served as an election observer for the Democratic Party

during elections the previous month. He claimed that in

the course of his duties as an election observer, he wit-
4 No. 06-4107

nessed voting irregularities that enabled the Socialist

Party to win the election. He testified that he was again

interrogated about the Democratic Party’s activities and

threatened with violence against his family.

After this last incident, the Musollaris decided to flee

Albania. They obtained nonimmigrant visas permitting

them to come to the United States for six months, but were

forced to leave their son, Kevin, behind. They arrived in

the United States in 2001, overstayed, and sought asylum

in 2002.

The Musollaris went before an IJ in the fall of 2003. The

IJ denied their claims for asylum, withholding of removal,

and protection under the CAT because he found

Musollari’s testimony incredible and lacking corroboration.

Further, the IJ denied voluntary departure because he

believed that Musollari was not of good moral character.

The Musollaris appealed, and the BIA affirmed the IJ’s

decision except as to voluntary departure. The case was

remanded to the IJ on that issue.

At the subsequent hearing before the IJ, the Musollaris

withdrew their application for voluntary departure and

instead sought to present new evidence on their claims.

They did not state what the new evidence was, however.

So the IJ denied the request and entered an order of

removal. The Musollaris again appealed, and the BIA

affirmed.

II. Discussion

The BIA adopted the IJ’s opinion, so we base our review

on the IJ’s analysis. Balogun v. Ashcroft, 374 F.3d 492, 498
No. 06-4107 5

(7th Cir. 2004). Our review of an order denying asylum

based on a failure to prove eligibility is extremely deferential; “the administrative findings of fact are conclusive

unless any reasonable adjudicator would be compelled

to conclude to the contrary.” 18 U.S.C. § 1252(b)(4)(B);

Sina v. Gonzales, 476 F.3d 459, 461 (7th Cir. 2007); Balogun,

374 F.3d at 498 (holding that the IJ’s findings may be

overturned only if “the evidence compels a different

result”). If an alien demonstrates eligibility, the Attorney

General has discretion to grant or deny asylum.

Ghebremedhin v. Ashcroft, 392 F.3d 241, 244 (7th Cir. 2004).

“[T]he Attorney General’s discretionary judgment

whether to grant relief under section 1158(a) of this title

shall be conclusive unless manifestly contrary to the law

and an abuse of discretion.” 8 U.S.C. § 1252(b)(4)(D).

The IJ’s credibility determinations are also accorded

substantial deference and should be overturned only

“under extraordinary circumstances.” Gjerazi v. Gonzales,

435 F.3d 800, 807 (7th Cir. 2006). Deference is not unlimited, however; the IJ’s rulings cannot be based on “conjecture” or “insufficient or incomplete evidence” and instead

“must be supported by specific, cogent reasons” which

“bear a legitimate nexus to the finding.” Id.

The Attorney General has discretion to grant asylum

to an alien “refugee.” 8 U.S.C. § 1158(b)(1)(A). A “refugee”

is one who is unable or unwilling to return to his

country of origin “because of persecution or a wellfounded 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). The applicant
6 No. 06-4107

In order to obtain relief under 8 U.S.C. § 1231(b)(3) for 2

withholding of removal, an applicant must “demonstrate a

clear probability of persecution,” which is a more demanding

burden than that for asylum. Balogun, 374 F.3d at 508. Similarly,

the standard for withholding of removal under the CAT is

that it is “more likely than not” that the applicant will be

tortured if returned. 8 C.F.R. § 1208.16(c)(2). This too is higher

than the burden for asylum. See Dandan v. Ashcroft, 339 F.3d

567, 575 n.7 (7th Cir. 2003). Thus, if the petitioners failed to

prove their claim for asylum because Musollari’s testimony

lacked credibility, the other claims must also fail.

has the burden of proving eligibility for asylum, and the

applicant’s testimony alone may be sufficient to sustain

the burden if the applicant’s testimony is credible.

8 C.F.R. § 208.13(a). Refugee status may be proven in one

of two ways. First, “if an applicant proves past persecution,

a rebuttable presumption arises that the alien has a wellfounded fear of future persecution.” Capric v. Ashcroft,

355 F.3d 1075, 1084 (7th Cir. 2004); 8 C.F.R. § 208.13(b)(1).

Second, an applicant may prove a well-founded fear of

persecution by demonstrating his “fear is subjectively

genuine and objectively reasonable in light of credible

evidence.” Capric, 355 F.3d at 1085; 8 C.F.R. § 208.13(b)(2).

The subjective component “turns largely upon the applicant’s own testimony and credibility,” Capric, 355 F.3d

at 1085, while the objective component requires the applicant to show that he will be singled out for persecution or that a group to which the applicant belongs is

subject to a pattern or practice of persecution. 8 C.F.R.

§ 208.13(b)(2).

2
No. 06-4107 7

Section 1158(b)(1)(B) was added by the REAL ID Act of 2005, 3

Pub. L. No. 109-13, § 101(a)(3), and applies only to applications

for asylum that were filed on or after May 11, 2005. Id.

§ 101(h)(2); see also Oyekunle v. Gonzales, 498 F.3d 715, 717-18

(7th Cir. 2007). Musollari’s application was received on February 1, 2002.

Thus, asylum cases often turn on the IJ’s credibility

determination; an adverse credibility finding will doom

the applicant’s claimed eligibility as a “refugee” under

either method of proof. “ ‘A credibility analysis assesses

the applicant’s claim only for internal consistency, detail,

and plausibility, typically demonstrated by background

evidence concerning general country conditions, if available . . . .’ ” Gjerazi, 435 F.3d at 808 (quoting Capric, 355 F.3d

at 1085); see also 8 U.S.C. § 1158(b)(1)(B)(iii). Corroboration 3

is generally not required to meet the petitioner’s burden

of proof unless the IJ finds the testimony not credible

without it. Capric, 355 F.3d at 1085-86 & n.4 (discussing in

which situations corroboration is required to meet petitioner’s burden of proof); see also 8 C.F.R. § 208.13(a) (“The

testimony of the applicant, if credible, may be sufficient

to sustain the burden of proof without corroboration.”)

(emphasis added).

In this case, the IJ found Musollari not credible, resting

this determination on a number of factors, only some

of which (as we will explain) are supported by the record.

First, the IJ viewed Musollari’s claim that he was interrogated and threatened after serving as an election observer

with skepticism, saying such claims were extremely

common amongst applicants from Albania. Relatedly, the
8 No. 06-4107

IJ disbelieved Musollari’s claim that the Socialist Party

asked him in November 2000 to manipulate an election

that had occurred the month before. The IJ also thought

Musollari’s arrests in 1997 and 1998 were not significant

enough to warrant detailed consideration. Next, the IJ

noted that Musollari’s testimony about the Socialist

Party seizing control of the government in 1997 through

force and violence was “diametrically opposed” by information in country reports and other sources of historical

data establishing that the Democratic government collapsed that year because of scandal and chaos associated

with the failure of large “pyramid schemes.” The IJ

also faulted Musollari’s failure to produce corroboration

for his two arrests and the claimed ransacking of his

home by the police. Finally, the IJ noted that Musollari

conceded he lied to American officials about his purpose

for coming to the United States in order to obtain a visa.

As we have noted, our review of the record reveals a

number of mistakes in the IJ’s reasoning. Musollari testified that he was an election observer in October of 2000

and was detained and threatened by police in November

of 2000 based on this political activity. The IJ found this

implausible based in part on his personal experience

with Albanian asylum seekers—90% of whom, the IJ

said, claim to have been Albanian election observers.

The IJ was entitled, based on his experience adjudicating

these claims, to question Musollari further on the

details of his appointment and service as an election

observer—and should have done so—but this in itself is

an insufficient ground on which to rest an adverse credibility finding.
No. 06-4107 9

The IJ also believed that the second arrest occurred in July 4

1998; in his brief Musollari calls this a “disturbing” mistake

because he was “arrested and beaten in October of 1998.” Based

on our review of the record, both dates are incorrect. Musollari

testified that the second arrest occurred on September 14, 1998.

The IJ also erred in evaluating the reasons for Musollari’s

detention in November 2000. Musollari never claimed, as

the IJ asserted, that Socialist Party agents asked him to

manipulate the results of the previous month’s election.

Instead, he testified that they “wanted me to give all the

information about the members of the democratic party or

to our plans where [sic], and also tell the names of the

democratic party.” Demanding the names and locations

of local Democratic Party members, as well as information

about their planned activities, is not the same thing as

attempting to coerce the manipulation of a vote that

occurred a month earlier. The latter might be factually

implausible; the former certainly is not. See Cecaj v. Gonzales, 440 F.3d 897, 898 (7th Cir. 2006) (noting that

“[p]ersecution of [Albanian] Democratic Party activists

during this period has been found in a number of cases”).

Musollari’s testimony on this point simply is not susceptible of the interpretation the IJ placed upon it.

Finally, the IJ inexplicably stated that Musollari had

not claimed he was mistreated during his two detentions

in October of 1997 and September of 1998, and therefore

these arrests were not serious enough to warrant further

consideration. Musollari’s testimony was directly to the 4

contrary, however. He stated that in October 1997 a

number of Socialist Party members attempted to
10 No. 06-4107

engage Musollari in a debate while at a restaurant.

Musollari refused to be drawn in and went home. Soon

thereafter, the police came to his house and started beating

him before taking him to the station. Once there, he

testified, he was threatened with death and was also

beaten with rubber sticks. Musollari also testified that

he was arrested in September 1998 on false charges of

having illegal firearms in his home. He was taken to a cell

where police “us[ed] violence” against him and interrogated him about his involvement in the Democratic Party.

The IJ either misunderstood or mischaracterized

Musollari’s testimony about his arrests.

Notwithstanding these mistakes, however, the balance

of the evidence relied on by the IJ supports the adverse

credibility determination. Most significantly—and this

was emphasized by the BIA in affirming the IJ’s decision—the IJ rightly noted that Musollari’s testimony

regarding the Democratic Party’s loss of power in 1997

was wholly inconsistent with what is known to have

occurred in Albania that year. Musollari testified that the

Socialists seized control from the Democratic Party in a

violent overthrow of the government. In reality, the

government of the ruling Democratic Party was brought

down by the collapse of large “pyramid schemes,”

which left thousands penniless. BUREAU OF DEMOCRACY,

HUMAN RIGHTS & LABOR, U.S. DEP’T OF STATE, ALBANIA:

PROFILE OF ASYLUM CLAIMS & COUNTRY CONDITIONS 3

(May 2001); THE EUROPA WORLD YEAR BOOK ONLINE,

ALBANIA: COUNTRY PROFILE, RECENT HISTORY (Oct. 2003);

COUNTRY INFORMATION & POLICY UNIT, U.K. BORDER

AGENCY, ALBANIA ASSESSMENT ¶ 4.7 (July 2003). Members
No. 06-4107 11

of the Democratic Party were believed to be complicit in

the pyramid schemes; civil and economic chaos followed,

and the government used force in an attempt to put

down the demonstrations. Representatives of both the

Democratic and Socialist parties agreed to abide by the

results of elections in June and July of 1997, which, as we

have noted, the Socialists swept. BUREAU OF DEMOCRACY,

HUMAN RIGHTS & LABOR, U.S. DEP’T OF STATE, ALBANIA:

PROFILE OF ASYLUM CLAIMS & COUNTRY CONDITIONS 3

(May 2001); THE EUROPA WORLD YEAR BOOK ONLINE,

ALBANIA: COUNTRY PROFILE, RECENT HISTORY (Oct. 2003).

Musollari attempts to minimize the stark differences

between his testimony and the factual history by arguing

that he simply gave “his impression about what transpired.” But this sort of dramatic discrepancy between

an asylum seeker’s testimony and the established background facts may form the basis of an IJ’s adverse credibility finding. See Capric, 355 F.3d at 1085. Although we

have repeatedly cautioned against overreliance on generalized information in country profiles or State Department country reports, see Oyekunle v. Gonzalez, 498 F. 3d

715, 716 (7th Cir. 2007); Dong v. Gonzales, 421 F.3d 573, 578

(7th Cir. 2005), it is permissible for an IJ to contrast an

asylum applicant’s testimony with specific historical facts

provided in a country report, see Huang v. Gonzales, 453

F.3d 942, 947 (7th Cir. 2006), and that is what the IJ did

here.

Once Musollari’s credibility was called into question, the

IJ was entitled to consider the lack of corroboration for

other aspects of his testimony. See Capric, 355 F.3d at 1085-
12 No. 06-4107

86 (“[I]f the IJ finds the testimony to be incredible, then

a convincing explanation of the discrepancies or extrinsic—

and credible—corroborating evidence is required.”); see also

Ikama-Obambi v. Gonzales, 470 F.3d 720, 725 (7th Cir. 2006)

(“[A]n IJ may disbelieve an applicant because she fails

to provide corroborating evidence, and subsequently

deny her claim.”). Despite having nearly two and a half

years to compile his case, Musollari presented no evidence to corroborate the core factual aspects of his

claim: his arrests in 1997 and 1998—during which he

testified that he was mistreated—or the ransacking of his

house by the police in September of 1997. The IJ noted that

corroborating testimony or affidavits from family or

friends might reasonably have been obtained “insofar as

Albania is not [now] experiencing any civil strife or war

and that there are regular commercial contacts and mail

contacts with that country.”

Finally, the IJ relied on Musollari’s admission that he

gave false information to the American Embassy when

applying for a travel visa. “Inconsistencies that do not

relate to the basis of the applicant’s alleged fear of persecution are less probative than inconsistencies that do.”

Balogun, 374 F.3d at 504; see also Korniejew v. Ashcroft, 371

F.3d 377, 383-84 (7th Cir. 2004) (finding that a discrepancy

on a collateral matter cannot “form the basis for an adverse

credibility finding” on its own). “Nevertheless, multiple

misrepresentations to Agency officials can serve as a

factor in the credibility calculus . . . .” Balogun, 374 F.3d

at 504. Accordingly, although the errors in the IJ’s analysis

give us pause, we conclude that the evidence and sufficent “specific, cogent reasons” support the adverse
No. 06-4107 13

credibility finding; the record does not compel a contrary conclusion.

The Musollaris also challenge the IJ’s refusal to hear new

evidence on remand, but this argument is a nonstarter.

They never explained to the IJ or the BIA what this new

evidence might be, nor have they favored us with a

description. Their failure to do so is fatal to the argument.

Rehman v. Gonzales, 441 F.3d 506, 509 (7th Cir. 2006)

(“[C]ourts do not set aside agencies’ decisions unless

mistakes cause prejudice, and how could we ascertain

prejudice without an offer of proof or some substitute?”).

The Musollaris’ persistent failure to identify their “new

evidence” leads to the inevitable conclusion that “there

is nothing more to offer.” Id. The petition for review

must therefore be DENIED.

WILLIAMS, Circuit Judge, dissenting. Because I would

grant the Musollaris’ petition for review, I respectfully

dissent. As the majority acknowledges, there are significant

flaws in the IJ’s credibility determination. Most notably,

the IJ completely ignored Albert Musollari’s testimony

that he was beaten on four occasions by police controlled

by the Socialist Party, testimony that was central to

Musollari’s claim that he has been persecuted in the past.
14 No. 06-4107

In my view, this flaw alone renders the IJ’s credibility

determination defective. But even if the IJ’s credibility

determination could be supported by the reasons he

provided (most of which were also defective), I submit

that the reason relied upon by the majority does not

justify an adverse credibility determination.

Musollari, a member of the Democratic Party in Albania,

testified that he was imprisoned and beaten by members of

the Socialist Party working for the government on four

separate occasions. The first imprisonment, in 1991, lasted

one week. Musollari was held in a cell with sixty to seventy

other individuals, beaten regularly, and subjected to

“psychotic pressure.” The second imprisonment, in 1997,

occurred after Musollari spoke out against what he believed to be fraudulent actions by the Socialist Party in

the June and July 1997 elections (which the Socialist Party

won). His house was ransacked and later he was taken

from his home and held in prison for a day. A policeman

put his boot on Musollari’s neck and threatened to kill

him, and he was visited in his cell every two hours by

policemen who beat him with rubber sticks and told

him they were going to punish him for organizing against

the Socialist Party. The third imprisonment occurred in

1998, when Musollari was taken to the police station and

put in a dark cell. His wrists were bound with barbed wire

and he was beaten. The policemen interrogated him

regarding his involvement with the Democratic Party and

threatened him. The fourth imprisonment occurred in

November 2000, when because of Musollari’s refusal to

help the Socialist Party during the October elections,
No. 06-4107 15

policemen arrested him at a Democratic Party meeting and

held him all day, threatening his wife and child. All of

these incidents occurred when the Socialist Party was

the majority party in government.

Inexplicably, in his order denying asylum, the IJ made

no mention whatsoever of any of the physical mistreatment that Musollari suffered during his prison visits. In

fact, the IJ went so far as to state, several times, that

Musollari did not allege he was mistreated during the 1997

and 1998 detentions. For example, he stated, “I don’t think

that the brief detention on [sic] October of 1997, even if

credible, is important to the respondent’s claim, insofar as

he was not mistreated and was released after only one day.”

(Emphasis added.) He also expressed the following

comment regarding the same imprisonment: “He was

held all day but released the following day without charge.

He makes no contention that he was mistreated during his

detention.” (Emphasis added.) Regarding the 1998 imprisonment, the IJ stated only that his assessment was the

same as his assessment of the 1997 imprisonment: “That

he was held only for a brief time. There was an accusation that he was harboring illegal firearms and then

released.”

In my view, these comments demonstrate a critical defect

in the IJ’s credibility determination. Musollari’s asylum

application is based on his fear of persecution by the

Socialist Party upon his return to Albania, which means

his testimony regarding these beatings is central to his

claim. The IJ’s comments reveal that he simply ignored

Musollari’s testimony on this matter. This is something
16 No. 06-4107

the IJ is not permitted to do, and we have overturned

credibility determinations in similar cases. See, e.g., Adekpe

v. Gonzales, 480 F.3d 525, 530 (7th Cir. 2007) (“We must

affirm the IJ’s decision unless it is not supported by

substantial evidence . . . or unless the IJ ignored probative

evidence.”); Tolosa v. Ashcroft, 384 F.3d 906, 909 (7th Cir.

2004); see also Agbor v. Gonzales, 487 F.3d 499, 504 (7th Cir.

2007); Nakibuka v. Gonzales, 421 F.3d 473, 477 (7th Cir. 2005)

(“The testimony that the IJ ignored was central to

Nakibuka’s claim of persecution.”); compare Iglesias v.

Mukasey, No. 07-2910, 2008 WL 3877302, at *3 (7th Cir.

Aug. 22, 2008) (“a claim that the BIA has completely

ignored the evidence put forth by a petitioner is an allegation of legal error”).

Given the IJ’s treatment of Musollari’s uncontradicted

evidence regarding the basis for his claim, I do not think

the IJ’s credibility determination is salvageable. But

despite this critical error, the majority upholds the IJ’s

adverse credibility determination because Musollari’s

description of events in 1997 does not comport with what

is known to have occurred in Albania during that year.

However, that testimony, albeit inaccurate, is tangential

to his claim and therefore does not discredit his claim.

To begin, I am not sure Musollari’s description of the

election in 1997 is diametrically opposed to the report

relied upon by the IJ in his determination. Musollari

testified that the Socialist Party won the election “by using

the force of the weapons and by corruption.” The report

states that election campaigning for the 1997 election

was “marred by violence” and despite the presence of
No. 06-4107 17

the Multinational Protection Force (which had been sent

to Albania by the United Nations to restore civil order

in April 1997) three people were reportedly killed in

violent incidents during the voting. It is true that Musollari

did not mention the Pyramid Scheme which caused the

civil unrest in early 1997, and it is also true that the

results of the 1997 election were certified as having

been satisfactorily conducted. But it is not clear to me

from the transcript that Musollari was actively lying

about what happened. At worst, Musollari’s description

was an exaggeration of those events told from the perspective of someone who affiliated himself with the

losing party in those elections.

Of course, an adverse credibility determination can be

supported by a finding that a petitioner is exaggerating

about something but it depends on the context in which

the petitioner is offering the information at issue. See Hanaj

v. Gonzales, 446 F.3d 694, 700 (7th Cir. 2006) (“An IJ

must analyze inconsistencies against the backdrop of the

whole record, as one factor in the overall credibility

determination.”); Balogun v. Ashcroft, 374 F.3d 492, 504

(7th Cir. 2004) (“Inconsistencies that do not relate to the

basis of the applicant’s alleged fear of persecution are

less probative than inconsistencies that do.”).

Even if Musollari’s description of the events of 1997

was completely inaccurate, Musollari was not asked to

provide a factually correct history of Albania in 1997.

Rather, he described the events that transpired in Albania

in 1997 to provide the background for one of his alleged

beatings by the Socialist Party. His description of the
18 No. 06-4107

events of 1997 was in response to his counsel’s question,

“How did this ‘suffering’ begin for you?” and “What, if

anything, in particular happened to you in July of 1997?”

(Emphasis added.) His suffering was driven by his perspective; because Musollari believed that the 1997

elections were corrupt, he spoke out against the Socialist

Party, which resulted in his 1997 imprisonment and

beating.

We have held on many occasions that for an inaccuracy

or falsehood to provide an adequate basis for an

adverse credibility finding, that inaccuracy must go to the

“heart” of the petitioner’s claim for asylum. Adekpe, 480

F.3d at 531 (7th Cir. 2007); Kllokoqi v. Gonzales, 439 F.3d 336,

341 (7th Cir. 2005); Hanaj, 446 F.3d at 700; Capric v. Ashcroft,

355 F.3d 1075, 1090 (7th Cir. 2004) (quoting cases for

the proposition that minor inconsistencies or omissions

will not support an adverse credibility finding); Korniejew

v. Ashcroft, 371 F.3d 377, 383-84 (7th Cir. 2004) (petitioner’s

factual inaccuracy was not the “linchpin” of her asylum

claim). It bears noting that even after the passage of the

Real ID Act (which does not affect this claim), we have

held that the IJ still must consider the purported inaccuracy within the context of all relevant factors. Kadia v.

Gonzales, 501 F.3d 817, 822 (7th Cir. 2007) (“[Under the

Real ID Act], [t]he immigration judge may consider

inaccuracies or falsehoods that do not go to the heart of

the asylum applicant’s claim, but he can do so only as

part of his consideration of ‘the totality of the circumstances, and all relevant factors.’ ”).

I would follow these cases here because Musollari’s

impression of the 1997 elections does not go to the heart
No. 06-4107 19

of his claim. When viewed in the context of the entire

hearing, Musollari’s description of the events that transpired in Albania in 1997 is entirely peripheral to his

claim, which is that he fears returning to Albania

because he was beaten by members of the Socialist Party

working for the government on four separate occasions.

Furthermore, the point Musollari was making is that he

was beaten for expressing his opinion about the 1997

elections and the Socialist Party. The truth of his opinion

is not relevant—it matters only whether he became a

target of violence based on his beliefs. That Musollari’s

impression of how the Socialist Party gained power in 1997

differs from historically known facts has no bearing on

whether he was beaten by the Socialist Party, nor does it

reveal anything about his fear for his safety. The IJ does not

explain otherwise. See San Kai Kwok v. Gonzales, 455 F.3d

766, 771 (7th Cir. 2006) (whether petitioner had a “bona

fide relationship” with her husband had no bearing on

whether she was subjected to an involuntary abortion,

and the IJ did not explain his reasoning to the contrary).

Without addressing Musollari’s testimony that he was

beaten and how that might relate to his impression

of historical events, a credibility determination based on

that impression alone bears no connection to Musollari’s

claim. Indeed, if Musollari is telling the truth that he

was beaten by the Socialist Party for speaking out about

the elections in 1997, it might explain his colored perception of the elections.

Ultimately, the IJ never made a credibility determination as to the key issue of whether Musollari’s fear of
20 No. 06-4107

persecution is credible. Had he relied on Musollari’s

inaccurate description of events to find that everything

Musollari said (including his testimony regarding the

beatings) was false, I think this might be a different case.

But the IJ does not connect this factual inaccuracy to

Musollari’s claim. In my view, this gap in the IJ’s reasoning

cannot be fixed unless the IJ properly considers Musollari’s

testimony that he was beaten and deems it credible or

incredible. That is the testimony that goes to the very

heart of his claim and the fact that the IJ completely

disregarded it taints the entire determination. Cf. Georgis

v. Ashcroft, 328 F.3d 962, 970 (7th Cir. 2003) (“[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.”).

I express no opinion as to the ultimate merits of

Musollari’s asylum claim or as to his credibility. But

because the IJ’s decision completely ignored testimony

that goes to the heart of the asylum claim, I submit that

such a determination cannot be saved by reliance on

tangential inaccuracies. I would grant the petition for

rehearing.

9-19-08