                              UNPUBLISHED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Vacated and remanded by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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).
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


     1
      At the time of the immigration proceedings, Curumi spoke
little or no English. Accordingly, all filings, interviews, and
testimony were facilitated by interpreters.

                                      2
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


                                       3
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.


                                   4
                               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);

                                5
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


       2
      Curumi 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
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


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
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


                                           8
     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.


                                    9
     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


                                        10
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



     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
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


                                      12
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

                                     13
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


                                        14
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.”                   Lopez-

Soto 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

                                         15
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




                                      16
Camara, we recommend assignment to a different immigration judge on

remand.


                                              VACATED AND REMANDED




                                17
