                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          APR 22 2004
                              FOR THE TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                                 Clerk


    BISSER LISSITCHEV,

                Petitioner,

    v.                                                    No. 03-9519
                                                    (INS No. A76-799-666)
    JOHN ASHCROFT, Attorney General                   (Petition for Review)
    for the United States,

                Respondent.


                              ORDER AND JUDGMENT         *




Before LUCERO , McKAY , and TYMKOVICH , Circuit Judges.



         Petitioner Bisser Lissitchev seeks review of the Board of Immigration

Appeals (BIA) decision denying his application for withholding of removal




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
pursuant to 8 U.S.C. § 1231(b)(3)(A).      1
                                                The BIA affirmed the oral decision of the

immigration judge (IJ) without analysis, making the IJ’s decision the final agency

decision for purposes of appellate review.            See Tsevegmid v. Ashcroft , 336 F.3d

1231, 1235 (10th Cir. 2003). We have jurisdiction under 8 U.S.C. § 1252(a) to

review the agency’s denial of withholding,            see Tsevegmid , 336 F.3d at 1235,

VACATE the BIA’s order, and          REMAND to the agency for further proceedings.

       To be granted withholding of removal, Lissitchev must demonstrate a

“clear probability of persecution attributable to race, religion, nationality,

membership in a particular social group, or political opinion.”          Id. (quotations

omitted). The IJ denied withholding based on his conclusion that Lissitchev’s

testimony about his experiences in Bulgaria was not credible in light of the State

Department’s profile of that country and certain specified inconsistencies between

the testimony and the record.

       Credibility is a finding of fact.       See Sviridov v. Ashcroft , 358 F.3d 722,

729 (10th Cir. 2004);    Secaida-Rosales v. INS , 331 F.3d 297, 307 (2d Cir. 2003).

The IJ’s credibility findings are deemed “conclusive unless any reasonable


1
       Lissitchev originally sought asylum as well as withholding of removal.
Asylum was denied because his application was untimely. Counsel concedes that
this court lacks jurisdiction to review a time-barred asylum claim,       see Tsevegmid
v. Ashcroft , 336 F.3d 1231, 1235 (10th Cir. 2003).        Lissitchev also sought relief
under the United Nations Convention Against Torture, which was denied.
Counsel raises no argument with respect to this claim; therefore it is waived.        See
State Farm Fire & Cas. Co. v. Mhoon , 31 F.3d 979, 984 n.7 (10th Cir. 1994).

                                                -2-
adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.

§ 1252(b)(4)(B). Section 1252 codifies the substantial evidence standard

previously set forth by the Supreme Court in     INS v. Elias-Zacarias , 502 U.S. 478,

481 (1992) (BIA decisions must be upheld if “supported by reasonable,

substantial, and probative evidence on the record as a whole.”) (quotation

omitted). See Dia v. Ashcroft , 353 F.3d 228, 247 n.17 (3d Cir. 2003) (en banc)

(collecting cases); Rivera-Jimenez v. INS , 214 F.3d 1213, 1216 n.4 (10th Cir.

2000) (“[N]o federal court has held that this statutory provision modifies the

substantial evidence standard previously applied.”).

       Under the substantial evidence standard, we do not weigh the evidence or

evaluate Lissitchev’s credibility, but we do examine the agency’s determination to

see whether there is a rational connection between the credibility determination

and the stated reasons therefor.   See Woldemeskel v. INS , 257 F.3d 1185, 1189

(10th Cir. 2001). Because an alien’s testimony alone may support relief from

removal, an IJ must give “specific, cogent reasons” for disbelieving the

testimony, Sviridov , 358 F.3d at 727 (quoting    Secaida-Rosales , 331 F.3d at 307).

       Lissitchev, a native of Bulgaria, testified that he was a member of VMRO,

an organization that has as its goal the reunification of all traditional Macedonian

territory into a single state. His grandfather founded the VMRO branch in

Doupnitza, the town where the Lissitchevs lived. His father was active in the


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organization, as was Lissitchev. He stated that he recruited new members, and

spent several hours a week in VMRO meetings with his father, who taught new

members the history and goals of the organization. He also stated that he and his

family were subject to harassment and threatening phone calls, and that he was

regularly roughed up by persons who were members of groups antithetical to

VMRO. He testified that, once or twice every ten days, he was taken from public

places and beaten by assailants who told him to quit VMRO and to tell his father

to stop his activities in the organization. Lissitchev said that each of these

“beatings” lasted only a couple of minutes, that his assailants never punched

him in the face, and that the results of these “beatings” were only bruises. He

stated that, between 1994 and August of 1997, he was assaulted in this manner

over 100 times.

      Lissitchev further testified about an incident that happened in August 1997.

He and his father were abducted by men in masks, driven to a nearby fort, and

beaten severely. Again, the assailants warned Lissitchev and his father to cease

their activities in VMRO. He testified that his father was tied to a tree, and hit

with a stone. The assailants splashed gasoline on Lissitchev and lit him on fire

with a match. When Lissitchev gained consciousness, he was in a hospital next to

his father. He testified that they tried to report the incident to the Bulgarian

police but that the police refused to take the report and accused Lissitchev of


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causing the injuries himself. After this incident, Lissitchev came to the United

States.

      The IJ determined that Lissitchev’s testimony was not credible. In so

concluding the IJ relied on four points. First, the IJ stated it was unlikely that

Lissitchev was persecuted on account of his membership in VMRO because the

State Department report on Bulgaria indicated that persecution “by the

authorities” was unlikely “for mere membership in an organization.” I R. at 53.

However, this statement mischaracterizes both Lissitchev’s testimony and the

State Department report. Lissitchev complained of persecution, not by the

authorities, but rather by a group of people opposed to VMRO.      See Bartesaghi-

Lay v. INS , 9 F.3d 819, 822 (10th Cir. 1993) (noting that persecution “may come

from a non-government agency which the government is unwilling or unable to

control”). Further, the only portion of the State Department report that mentions

“mere membership” discusses membership in OMO-Ilinden, a different

organization that advocates separatism for Macedonians. In full, the pertinent

sentence says: “While it is possible that activists might encounter mistreatment

under some circumstances, mere membership and/or support do not, in our view,

form grounds for significant concern.” I R. at 329. Even if this sentence were

considered applicable to other organizations such as VMRO, it is clear from

Lissitchev’s testimony that he was not a “mere member,” but an active recruiter of


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new members to the organization. Moreover, his family’s involvement in VMRO

spanned three generations and he was clearly known by VMRO opponents, as

demonstrated by several years of alleged mistreatment.

       The IJ further grounded its negative credibility determination by reasoning

that because VMRO was part of a coalition government between 1997 and 2000,

it was unlikely that Lissitchev “would have been targeted for persecution by the

authorities during the time that his political party was a member of the ruling

coalition.” Id. at 53. However, the conduct which forms the basis of Lissitchev’s

claim occurred before the 1997 parliamentary elections in Bulgaria. Again,

Lissitchev did not claim that    the authorities persecuted him, but instead, members

of a group or groups opposed to the VMRO. There is no evidence in the record to

suggest the political change in 1997 affected the anti-VMRO groups’ treatment of

Lissitchev, or the government’s ability to control such groups.

       The IJ also relied on what he considered to be inconsistencies among the

record, Lissitchev’s testimony, and application for asylum. He identified three

such inconsistencies. First, in a medical report, translated from Bulgarian,

hospital staff refer to the incident resulting in Lissitchev’s burns as an “accident.”

Id. at 266. The IJ characterized this as “some indication” that Lissitchev was not

actually attacked as he testified.   Id. at 53. But Lissitchev explained that the

police and medical personnel were not interested in investigating the incident


                                            -6-
because they were afraid of the people who assaulted him. He also testified that

the Bulgarian word used in the report which was translated as “accident” can also

mean “incident.”   See Akinmade v. INS , 196 F.3d 951, 956 (9th Cir. 1999)

(noting that “discrepancies . . . possibly the result of mistranslation or

miscommunication” are insufficient to support an adverse credibility

determination) (quotation omitted). Accordingly, the IJ’s reliance upon the word

“accident” in the translated medical report is not a valid ground for disregarding

Lissitchev’s testimony.   See id. at 957 (reasoning that minor discrepancies in the

record do not support an adverse credibility finding).

      The next cited inconsistency is a detail about the burning incident.

Lissitchev testified that although his father was tied to a tree during the incident,

he was not. His application for asylum, however, contains the following

statement: “At the first time I didn’t realized what had happened, but when I saw

my father tight [words scratched out] to the trees next to the one I was tight took I

remember what happened . . . .” I R. at 337–38 (errors in original). A medical

evaluation from the United States also notes that Lissitchev reported he was tied

to a tree. Id. at 238. In explanation, Lissitchev argues that the translator who

helped him prepare his asylum application was inexperienced and may have made

errors, and that he had difficulties communicating with the evaluating physician

here in the United States. Language problems aside, we agree that there are


                                          -7-
inconsistencies in the record about whether Lissitchev was tied to a tree during

the burning incident. However, we agree with Lissitchev that this is not

a “fundamental inconsistency” and does not affect the main thrust of the

incident—that Lissitchev was doused with gasoline and set on fire.       See Uwase v.

Ashcroft , 349 F.3d 1039, 1043 (7th Cir. 2003) (minor inconsistencies “having

nothing to do with [petitioner’s] claim that she feared for her life” were

insufficient to support an adverse credibility finding) (citing   Gao v. Ashcroft ,

299 F.3d 266, 272 (3d Cir. 2002);     Diallo v. INS , 232 F.3d 279, 288 (2d Cir.

2000)); see also de Leon-Barrios v. INS , 116 F.3d 391, 393–94 (9th Cir. 1997)

(noting that any discrepancies upon which a negative credibility finding rests

must go to the “heart of the asylum claim”) (quotation omitted). Notably, the

record contains evidence supporting Lissitchev’s claim: a doctor’s letter opining,

after examination, that Lissitchev has scars on his right shoulder, arm, and back

which are consistent with burns. I R. at 238.

       The third and final inconsistency the IJ relied on in finding Lissitchev’s

testimony incredible concerns the numerous “beatings” Lissitchev alleged he

suffered in the years leading up to the burning incident. The IJ reasoned that

Lissitchev’s allegations on this point were not credible because Lissitchev could

not suffer hundreds of beatings without medical evidence of any injury. But

Lissitchev’s testimony about the nature and length of these “beatings” is fully


                                             -8-
consistent with the lack of permanent injury. Further, there is no other evidence

in the record to support the IJ’s conclusion that these allegations are implausible.

Where an adverse credibility determination “is not based on a specific, cogent

reason, but, instead, is based on speculation, conjecture, or an otherwise

unsupported personal opinion, we will not uphold it . . . .”      Dia , 353 F.3d at 250.

       Accordingly, we are left with a single inconsistency in the record: the

detail of whether Lissitchev was tied to a tree during the incident in which he was

beaten and set on fire. In light of the record as a whole, we cannot conclude that

this detail alone demonstrates a lack of credibility in Lissitchev’s testimony.

Because the IJ’s decision lacks support from substantial evidence in the record,

the BIA improperly affirmed the decision. We therefore          GRANT the petition for

review and VACATE the BIA’s order. The matter is               REMANDED to the agency

for further proceedings on Lissitchev’s application for withholding of removal.


                                                         Entered for the Court



                                                         Carlos F. Lucero
                                                         Circuit Judge




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