In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-1836

DONALD HANAJ,

Petitioner,

v.

ALBERTO R. GONZALES,

Respondent.

____________

Petition for Review of an Order

of the Board of Immigration Appeals.

No. A77-839-228

____________

ARGUED NOVEMBER 28, 2005—DECIDED MAY 3, 2006

____________

Before KANNE, ROVNER, and WOOD, Circuit Judges.

ROVNER, Circuit Judge. Petitioner, Donald Hanaj,

entered the United States without admission, parole or

inspection through Canada, and applied for asylum in 1999.

The asylum application was also considered as a request for

withholding of removal and for protection under the United

Nations Convention Against Torture. The immigration

judge denied his application, and ordered him removed, and

the BIA summarily affirmed. Hanaj now seeks relief from

this court.
2 No. 05-1836

I

At the hearing, the immigration judge was presented with

the testimony of Hanaj, as well as that of numerous witnesses. We turn first to Hanaj’s testimony.

Hanaj testified that he is an ethnic Albanian who was

born in Gjilan, Kosovo, on May 19, 1980, and resided there

until April 1998 when he was forced to leave due to persecution by Serbian officials. His father was an active member

in the League Democratic of Kosovarian (“LDK”), a political

party opposed to Serbian rule over Kosovo, and Hanaj and

his brother later became members as well. When Hanaj was

ten or eleven years old, his father moved to Germany

because the Serbian special police sought to kill him for his

political activities. Hanaj’s brother, Eduard, was later

forced to leave as well, and he ultimately obtained asylum

in England. The police searched Hanaj’s home on several

occasions for evidence relating to the departure of his father

and brother, and threatened to burn down the home if they

found anything incriminating. Hanaj formally joined the

LDK in 1996 when he was sixteen, and received a membership card. At the hearing, Hanaj was questioned as to why

his membership card contained the dates of 1992 to 1995.

He testified that the LDK used old cards because they

lacked the means to make new ones.

In 1996, several police officers approached Hanaj on the

street, speaking to him in Serbian. When he responded to

them in Albanian, they became angry and hit and kicked

him for ten minutes, leaving scars on his lip and shin.

Hanaj went to the Serbian-run hospital, but was refused

treatment because he was Albanian. A few months later, a

vehicle Hanaj was driving was stopped at a police roadblock

and searched, and LDK leaflets were found under the car

seat. Hanaj and his friends were then transported to the

police station, where they were separated. Hanaj was then

questioned about LDK and his father. He denied any
No. 05-1836 3

involvement with LDK, and foreswore knowledge of his

father’s whereabouts. Hanaj also refused to identify LDK

members whose pictures he was shown. During this

interrogation, he was first struck repeatedly on his head.

The police then handcuffed him and chained the handcuff

to a hook on the wall, leaving him hanging by the chain. He

was then beaten with a whip and a wooden stick. When he

began to fade in and out of consciousness, the police

removed him from the wall and beat the soles of his feet

with a wooden stick until they were bleeding and swollen.

He was subsequently placed in a cell which contained water

and salt on the floor to exacerbate those wounds. Three

days later, Hanaj found himself at a hospital, but had no

recollection as to how he got there or what transpired in the

interim. It took a month of care at home before Hanaj

recovered from those injuries.

Hanaj had yet another violent encounter with the

police when he was about seventeen years old, after a

search at a roadblock again yielded banned materials

including LDK leaflets and a book about Kosovo. He was

interrogated, hit with wooden sticks and a riding crop, and

once again placed in a basement cell. This aggravated his

prior injuries.

In November 1997, Hanaj and approximately 1,000 other

ethnic Albanians gathered in a demonstration led by the

leader of the local LDK, to celebrate Albanian flag day.

When the Serbian police tried to break up the demonstration, the Albanians responded by throwing rocks, and the

Serbian police then shot into the crowd. One of Hanaj’s

close friends, Naim Frasheri, was hit by a bullet. Hanaj and

his friends took Naim to Hanaj’s house, where Naim died

shortly thereafter.

The final event precipitating Hanaj’s departure occurred

in April 1998, when his father unexpectedly returned home.

Shortly after his arrival, Hanaj’s mother responded to a

knock at the door. Upon opening the door, she encountered
4 No. 05-1836

the Serbian police, who struck her on the head with the butt

of a gun, and she fell to the ground unconscious. The police

kicked Hanaj’s father and then searched him, finding an

Albanian flag and a book by a national LDK leader. When

Hanaj’s father spit on the police, they shot and killed him.

At that time, Hanaj fled to his uncle’s house, where his

uncle gave him some money and sent him to a cousin in

Macedonia. Because many Serbs lived in Macedonia, his

cousin recommended that Hanaj continue on to Greece.

After arriving in Greece, Hanaj contacted his uncle and

learned that his parents had both died and that a warrant

for Hanaj’s arrest had been left at Hanaj’s home.

Eventually, Hanaj traveled to Canada by ship. Once

there, he climbed under a truck and hid in the space

where a spare tire is normally kept. The truck crossed the

border into the United States, and when it slowed to a near

stop, Hanaj jumped out. He made his way by bus from that

location in Plattsburg, New York, to Chicago.

In support of his asylum application, Hanaj introduced

his birth certificate, the arrest warrant that his uncle

mailed to him in Greece, his LDK membership card, and the

international driver’s license that he had with him when he

fled Kosovo. He further presented the testimony and

affidavits of many witnesses to corroborate his claim of

torture and persecution. Among those was the affidavit of

Dr. James Sanders, who documented scars on Hanaj’s heel,

head, shoulder, back, palms and leg consistent with his

allegations of the beatings. Dr. Sanders is a board-certified

family physician, who has worked at the Center for Victims

of Torture in Minneapolis, Minnesota, and established the

Advocates of Survivors of Trauma and Torture in Baltimore,

Maryland. He received post-graduate education in the

examination, diagnosis and treatment of torture survivors

at Harvard and Columbia universities. He also served as a

program officer for a large international relief operation in

Kosovo in 1996-97. Hanaj further submitted an affidavit of
No. 05-1836 5

Alison Duncombe, a physical therapist who spent four

sessions with Hanaj to treat him for back, leg, and neck

pain and frequent headaches.

Hanaj also presented testimony from Julie A. Mertus, a

human rights professor and a specialist on country conditions in Kosovo. Mertus testified that Hanaj’s description as

to the type of torture he experienced was consistent with

the descriptions provided during that time period

by numerous ethnic Albanians in Kosovo who Mertus

had interviewed, especially his experience in being beaten

on the bottom of the feet and placed in wet cells. Mertus

testified as to her belief that the Serbian police were trained

to act in a specific way and that there was a pattern and

practice to the type of torture Hanaj experienced. Her

testimony further detailed her extensive experience in

Kosovo, including as the author of a book on Kosovo based

on ten years of study and extensive field work. She was

asked to participate on a task force convened by the White

House on the future of Kosovo, and visited Kosovo on a

NATO-sponsored trip.

In addition, Hanaj introduced the testimony of Dr. Steven

Patt, a psychiatrist who had been treating Hanaj once or

twice a month for approximately fifteen months as of the

time of the hearing, for a total of approximately 20-25

sessions of 50 minutes each. Dr. Patt diagnosed Hanaj as

definitely suffering from post-traumatic stress disorder

(“PTSD”), and after 10 months of treatment had prescribed

medication for Hanaj to ease the symptoms. Dr. Patt

testified that he does not doubt the truth of what Hanaj

described to him regarding his experiences in Kosovo. Dr.

Patt added that in his profession, he listens to patients with

the understanding that they are not always truthful, but

that he found Hanaj to be very reliable. Throughout the

many months of treatment, Hanaj was detailed in describing what happened and was consistent in that Dr. Patt did

not hear anything from him that conflicted with anything
6 No. 05-1836

heard at a different time, including his descriptions of the

beatings by the police, the fatal shooting of his friend, and

the deaths of his parents. Moreover, Dr. Patt further stated

that Hanaj’s descriptions were plausible and that everything in his clinical picture fit with what Dr. Patt heard

from Hanaj. In addition, Dr. Patt stated that Hanaj’s

descriptions were consistent with the persecution that other

Kosovar patients had described to him in his practice. Dr.

Patt’s experience with other torture victims stemmed from

his volunteer work at the Marjorie Kovler Center for the

Treatment of Survivors of Torture (“Kovler”), which referred

torture and abuse victims in need of psychiatric treatment

to him. Through Kovler, Dr. Patt had treated four patients,

including three torture victims who were ethnic Albanians

from Kosovo. An affidavit from Mario Gonzalez, the clinical

supervisor at Kovler, revealed that Gonzalez spent four

sessions with Hanaj of three hours each, and that he

concluded that Hanaj was suffering from PTSD and referred

him to Dr. Patt for treatment.

Hanaj presented other corroborating testimony as well.

Kelly Lynn Maynard, a linguist, testified as to an analysis

of Hanaj’s speech, concluding that it was consistent with the

speech of persons in Southeastern Kosovo, specifically

Gjilan. The government did not contest her qualifications as

an expert or the admissibility of her testimony, but crossexamined as to her conclusions. Hanaj also presented an

affidavit from his brother as to where they were born and

lived and the activities on behalf of the LDK, and included

a copy of his brother’s passport, driver’s license and visa

listing his brother’s birthplace as Kosovo.

The government presented two witnesses. Gideon Epstein, an expert document examiner from the federal

government’s Forensic Document Laboratory, examined the

documents submitted by Hanaj. After comparing Hanaj’s

birth certificate to four authentic birth certificates in FDL’s

files, Epstein concluded that the birth certificate was a
No. 05-1836 7

fabricated document. Epstein also concluded that the

international driver’s license was a very poor quality

counterfeit. The FDL files did not contain documents

similar to the arrest warrant and the LDK membership

card, so Epstein reached no conclusion as to the validity

of those documents.

The second government witness was Claudia H. Field, the

asylum officer who interviewed Hanaj for approximately 1-

11⁄2 hours with the assistance of an interpreter provided by

Hanaj. Officer Field testified that she conducts more than

one interview a day, and takes notes which she uses to

write a report two to five days later. Officer Field concluded

that Hanaj was not credible based on a number of inconsistencies between Hanaj’s application and his responses to

her questions during the interview. Among those inconsistencies were that: Hanaj stated that on April 11, 1997, the

second time he was stopped at a roadblock, he showed the

police his international driver’s license, but the driver’s

license was issued four days later on April 15; Hanaj stated

that he refused to go to the hospital on April 11 after the

detention and beating but the asylum application indicates

that he went to the hospital and was denied treatment;

Hanaj was inconsistent in the dates that his father had left

home; Hanaj claimed to join the LDK in 1996 but the

membership card was dated 1992 to 1995; and Hanaj was

inconsistent in explaining how he crossed the border from

Canada to the United States. In response to questioning,

Officer Field acknowledged that Hanaj was consistent in his

description of the times he was stopped, beaten and tortured by the Serbian police, and the day his parents were

killed. She further acknowledged that the types of beatings

described by Hanaj are consistent with her knowledge of

how Serbian police treated ethnic Albanians according to

the Country Condition Reports from Kosovo. She did not

ask Hanaj whether he had scars from the beatings, and

therefore the physical corroboration of his description of

events was not a part of her credibility determination.
8 No. 05-1836

II

In order to succeed on a claim for asylum, an applicant

must demonstrate that he is unable or unwilling to return to his 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. § 1101(a)(42)(A); see Hernandez-Baena v.

Gonzales, 417 F.3d 720, 722-23 (7th Cir. 2005). An applicant

who demonstrates past persecution is entitled to a

rebuttable presumption of a well-founded fear of future

persecution. Id.

The immigration judge began by reciting the above

testimony and evidence in his decision. He held that the

incidents described by Hanaj in his application and testimony clearly indicated a level of mistreatment that rises to

the level of persecution, and therefore that the critical issue

was whether his claim was credible. In assessing credibility,

however, the IJ based his decision almost entirely on the

determination by Epstein that the birth certificate was not

genuine. The IJ relied on In re O-D-, 21 I. & N. Dec. 1079,

(BIA 1998), quoting it as holding that “ ‘presentation by an

asylum applicant of an identification document that is

found to be counterfeit by forensic experts not only discredits the applicant’s claim as to the critical elements of

identity and nationality, but, in the absence of an explanation or rebuttal, also indicates an overall lack of credibility

regarding the entire claim.’ ” IJ Op. at 9. The IJ noted that

Hanaj’s birth certificate was determined to be a “known

counterfeit,” and that Hanaj had submitted “other documents of questionable authenticity, including the LDK

membership booklet.” Id. at 10. The court also noted

without further explanation that “there are additional

credibility concerns based upon inconsistencies and

implausibilities contained in the record and cited

above”—which presumably related to the inconsistencies

noted by the asylum officer. Id. Based on In re O-D-, the IJ
No. 05-1836 9

determined that Hanaj had not presented a credible claim.

Because the BIA affirmed without opinion, we review the

IJ’s decision to determine whether it is supported by

substantial evidence, and must affirm if the decision is

supported by reasonable, substantial and probative evidence on the record considered as a whole. Tolosa v.

Ashcroft, 384 F.3d 906, 908 (7th Cir. 2004).

In Kourski v. Ashcroft, 355 F.3d 1038, 1040 (7th Cir.

2004), we explicitly rejected the application of In re O-Dused by the IJ in this case, holding that absent reason to

believe that the applicant knew or suspected the forgery,

proof that a document was a forgery would not be evidence

that the applicant was lying. The applicant in Kourski

asserted that he was born in Russia and was persecuted

because he was Jewish. The only evidence that he presented

as to his Jewish identity other than his sworn testimony

was a copy of a purported Russian birth certificate listing

his nationality as Jewish. Id. at 1038. We noted that the

testimony of an applicant, if believed, can be sufficient in

itself to sustain a burden of proof without corroboration,

and therefore that discrediting of the corroboratory evidence

did not necessarily doom the claim. Id. at 1039. In Kourski

the IJ did not fault Kourski for lack of corroboration, but

instead concluded that the forgery demonstrated that he

was not a credible witness. It was that leap of logic that we

criticized in Kourski, and that the IJ similarly made in the

present case. As we held in Kourski, the forged nature of a

document undermines an applicant’s credibility only if the

IJ concludes that the applicant knew or suspected the

document had been forged. Id. at 1039-40. In fact, even in

that circumstance, an innocent explanation is possible, for

an applicant lacking evidence of his true identity might be

tempted to procure fraudulent documentary evidence to

avoid returning to a place of persecution, but an IJ would

not be required to draw that conclusion. Id. at 1040.

However, absent a determination that the applicant had
10 No. 05-1836

reason to know that the document was forged, “its existence

does not undermine his credibility, though it deprives his

testimony of the extra boost to credibility that it would have

if it were corroborated.” Id.

The IJ in this case made no finding that Hanaj knew or

had reason to know that the birth certificate was forged.

That is not surprising given that Hanaj’s uncontroverted

testimony was that the birth certificate was obtained by his

mother who told him she had obtained it from a government

agency when he was about thirteen or fourteen years old,

and it was sent to him by his uncle after he fled to Greece.

Those circumstances are indistinguishable from that in

Kourski. Id. at 1038.

In fact, the IJ’s use of the inauthentic birth certificate to

discredit Hanaj’s claim in its entirety is more egregious,

because the IJ relied on the fraudulent nature of the

document to discredit not just Hanaj’s testimony, but the

corroborating testimony of all of his witnesses as well. In

Kourski, the applicant presented only his own testimony

and the birth certificate to establish his identity. Hanaj,

however, presented substantial evidence corroborating

his claim to be an Albanian persecuted in Kosovo who

was persecuted because of his status, all of which was

ignored by the IJ in making the credibility determination.

That included testimony that the type of torture he described was reflective of the experience of other ethnic

Albanians in Kosovo during the same time period, including

details such as the use of wooden sticks to beat the bottoms

of feet and then the placement in a cell with salt water on

the ground. Hanaj’s recitation of the details of that torture

was consistent over a fifteen-month period, and approximately 20 hours, of therapy. Moreover, his allegations were

considered credible by his treating psychiatrist and by the

clinical supervisor at Kovler. His identity was confirmed by

his brother, who had himself sought and obtained asylum

in England. Significantly, Hanaj even possessed physical
No. 05-1836 11

corroboration of his testimony, in the form of scars on his

heel, head, shoulder, back, palms and leg consistent with

his allegations of torture.

Inexplicably, the IJ did not mention any of this testimony

and evidence in his credibility determination. In fact, the

IJ’s only reference to the rest of the significant evidence of

record was his off-hand reference to inconsistencies in the

record, which appears to refer to the asylum officer’s

recitation of inconsistencies between his application and

oral statements. That reliance is misplaced. The alleged

inconsistencies referenced by the asylum officer relate to

insignificant matters, not the type of statements material

to his claim. Moreover, Officer Field acknowledged that

Hanaj was consistent in his description of the detentions,

beatings, torture and his parents’ deaths—all of the acts

forming the basis of his persecution claim. In relying on

purported inconsistencies, the IJ relied on the hour-long

interview with Officer Field, but inexplicably failed to

mention Dr. Patt’s testimony that Hanaj was consistent and

detailed in his descriptions of the events over the 50-minute

weekly and bi-weekly sessions with Dr. Patt, spanning a 15-

month period. We have repeatedly held that trivial inconsistencies are not a basis for discrediting testimony. Iao v.

Gonzales, 400 F.3d 530, 532 (7th Cir. 2005); Balogun v.

Ashcroft, 374 F.3d 492, 504 (7th Cir. 2004)

(“[i]nconsistencies that do not relate to the basis of the

applicant’s alleged fear of persecution are less probative

than inconsistencies that do.”) Inconsistencies such

as whether he showed the international driver’s license

or his Kosovo driver’s license at the police roadblock are

precisely that type of trivial inconsistency, and that is true

of the inconsistencies targeted by Officer Field as a whole.

An IJ must analyze inconsistencies against the backdrop of

the whole record, as one factor in the overall credibility

determination. Balogun, 374 F.3d at 504. No such examination occurred here, as the IJ did not even mention the
12 No. 05-1836

testimony of Hanaj’s witnesses in reaching his credibility

decision. The IJ cannot selectively examine evidence in

determining credibility, but must present a reasoned

analysis of the evidence as a whole. Instead, the IJ in this

case used the allegedly forged nature of the documents to

negate the credibility of the claim as a whole, and to negate

the relevance of all other corroborating evidence presented.

That goes beyond even the improper use in Kourski, and

must be rejected for the same reason. The denial of asylum

lacks a reasoned basis, and therefore the order of removal

is vacated and the case returned to the immigration

authorities for further proceedings consistent with this

opinion. Although the choice of presiding judge is left to the

discretion of the BIA, we urge that the BIA assign the

matter to a different judge on remand. See Circuit Rule 36

of the United States Court of Appeals for the Seventh

Circuit; see also Gjerazi v. Gonzales, 435 F.3d 800, 813 (7th

Cir. 2006), Kerciku v. INS, 314 F.3d 913, 919 (7th Cir.

2003). Petitioner Hanaj may recover his costs in this court.
No. 05-1836 13

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—5-3-06