Ulanbek Kadyr Uulu v. MERRICK B. GARLAND, Attorney General of the United States

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-1973
U LANBEK K ADYR U ULU,
Petitioner,
v.
M ERRICK B. GARLAND, Attorney General
of the United States,
Respondent.
____________________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A206-745-949.
____________________
A RGUED F EBRUARY 14, 2023 — DECIDED S EPTEMBER 1, 2023
____________________
Before R OVNER , K IRSCH , and J ACKSON -A KIWUMI , Circuit
Judges.
JACKSON -A KIWUMI , Circuit Judge. Ulanbek Kadyr Uulu, a
citizen of Kyrgyzstan, entered the United States on a tourist
visa. After his visa expired, he made an affirmative request
for asylum alleging that he faced persecution at home for pro-
testing a government mining rights deal. His asylum request
was denied, and the case was referred to immigration court

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2 No. 22-1973
where the judge, and later the Board of Immigration Appeals,
likewise rejected his asylum bid and set him on the course for
voluntary removal. He now petitions for our review. We share
some of Uulu’s concerns about the immigration judge’s re-
view of his corroborating evidence on the events that led him
to flee Kyrgyzstan. But at the same time, Uulu’s account of
those events contains too many inconsistencies to upset the
immigration judge’s conclusion that he was not credible.
Those inconsistencies, coupled with our deferential standard
of review, lead us to deny Uulu’s petition.
I
We sketch the following facts largely based on the account
Uulu’s counsel has presented to us; we note any inconsisten-
cies in that account later in our discussion. Uulu, now in his
mid-forties, is from the Kyrgyz capital of Bishkek, where he
lived with his wife and two teenage children. He became more
involved in politics in 2010, when he joined Respublika, one
of several opposition parties in Kyrgyzstan. In 2012, he saw a
news report on a deal Kyrgyzstan officials signed giving
Kumtor, a Canadian company, the rights to a gold mine. He
believed the deal was a corrupt giveaway of national re-
sources to a foreign company.
On April 24, 2013, Uulu attended a peaceful protest
against the Kumtor deal. Police fired tear gas at the crowd and
attacked protesters, including Uulu. The police took Uulu to
a police station where they hit him with a filled bottle and
placed cellophane over his head, causing him to lose con-
sciousness. Uulu testified that he was detained for five to six
hours and that a chemical in the room, likely chlorine, made

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No. 22-1973 3
him dizzy. Before releasing Uulu, one of the officers asked
him to sign a document stating he could not leave the country.
The morning after Uulu’s release, on April 25, 2013, the
police visited him and brought him back to the station. There,
they asked him to admit guilt, put a bag over his head, and
detained him without food until around nine o’clock at night.
He was told to come back the next day. Uulu took a taxi home
and when he got out, four unknown men asked who he was
and beat him until he was unconscious. He woke up in the
hospital. He later called the police and said he could not ap-
pear the next day but would return after recovering from his
injuries. He never returned to the police station and, roughly
two months later, on June 20, 2013, he left for the United States
on a tourist visa. Uulu says that while he was in the United
States, the Kyrgyz government found him guilty of “organiz-
ing mass riots” and sentenced him in absentia to five years in
prison.
In 2014, Uulu made an affirmative asylum request that
U.S. Citizenship and Immigration Services rejected. An asy-
lum officer then classified him as removable under 8 U.S.C. §
1227(a)(1)(B) for violating the terms of his visa, and the De-
partment of Homeland Security referred his case to immigra-
tion court in 2015.
In 2018, the immigration court held a hearing on Uulu’s
asylum application. As part of the hearing, Uulu testified and
presented corroborating letters from his wife, relatives, neigh-
bors, and lawyer in Kyrgyzstan. He also supplied records in-
cluding a medical report documenting injuries from one of his
beatings and documentation of a criminal proceeding in Kyr-
gyzstan. After approximately one month, the immigration

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4 No. 22-1973
judge denied the application and granted the government’s
request for Uulu’s voluntary removal.
The immigration judge ruled that Uulu made shifting
statements about key events in his asylum application, at his
asylum interview, and during his hearing testimony. These
key events included whether police harmed him when he was
detained on April 24, how long he was detained, whether he
returned to the police station on April 26 as requested, and
where he was attacked by unknown individuals. The immi-
gration judge found that smaller details like the use of chlo-
rine by the police had also shifted.
The immigration judge decided to put less weight on the
corroborating statements from family and neighbors because
they were interested parties who were not available for cross
examination. Additionally, the judge noted, the statement
from Uulu’s wife contradicted his claim of detention and tor-
ture on April 24, and the medical report corroborated only
Uulu’s April 25 injuries, which were inflicted by unknown in-
dividuals not obviously associated with state actors. The
judge placed little weight on the documents showing the
“mass riots” criminal charge levied against Uulu—these in-
cluded a “search and arrest warrant” and papers from the
subsequent judicial proceeding—because the immigration
court could not verify the documents.
Uulu appealed to the Board of Immigration Appeals,
which affirmed the immigration judge without further opin-
ion.

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No. 22-1973 5
II
In this petition for review, Uulu argues the immigration
judge’s decision was based on “trivial” inconsistencies in his
accounts of who harmed him and when.
Because the Board of Immigration Appeals summarily
adopted the decision of the immigration judge, we review the
factual findings of the immigration judge as if the Board made
them. Boci v. Gonzales, 473 F.3d 762, 765–66 (7th Cir. 2007). We
review those factual findings—including the immigration
judge’s credibility findings—with deference and uphold
them “so long as they have the support of substantial evi-
dence.” Cojocari v. Sessions, 863 F.3d 616, 621 (7th Cir. 2017)
(quoting Krishnapillai v. Holder, 563 F.3d 606, 609, 615 (7th Cir.
2009)).
For Uulu to qualify for asylum, he must prove he is a qual-
ifying refugee—that he cannot or will not return to his home
country “because of persecution or a well-founded fear of per-
secution on account of race, religion, nationality, membership
in a particular social group, or political opinion.” 8 U.S.C. §
1158(b)(1)(A) & § 1101(1)(42)(A). Persecution can include
“punishment or the infliction of harm for political, religious,
or other reasons that this country does not recognize as legit-
imate.” Cruz-Martinez v. Sessions, 885 F.3d 460, 463 (7th Cir.
2018) (quoting Pathmakanthan v. Holder, 612 F.3d 618, 622 (7th
Cir. 2010)).
An applicant has the burden of showing they are a quali-
fying refugee, and their application can be sustained based on
testimony alone if the court determines it is “credible, is per-
suasive, and refers to specific facts sufficient to demonstrate
that the applicant is a refugee.” 8 U.S.C. § 1158(b)(l)(B)(i)-(ii).

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6 No. 22-1973
An immigration judge may base an adverse credibility find-
ing on falsehoods or inconsistencies in testimony, even if the
inconsistencies do not go to the heart of the applicant’s claim.
Cojocari v. Sessions, 863 F.3d at 620. Still, an immigration judge
must distinguish between material and immaterial inconsist-
encies. We have previously reversed denials of asylum when
inconsistencies were minor, concerned “irrelevant details” in
the context of an applicant’s “broader claim of persecution,”
or when the immigration judge failed to consider “reasonable
explanations offered.” Id.
A
Uulu recounted his experience in Kyrgyzstan at three key
points: (1) his asylum application; (2) his asylum interview;
and (3) the immigration court hearing. The inconsistencies in
Uulu’s account are serious and go directly to the extent of his
persecution and the threat he could face if he were sent back
home. He consistently testified that he attended a political
protest against the mine deal on April 24. But, he did not men-
tion until the immigration court hearing that he was tortured
by police during his interrogation that day.
While Uulu’s account of what happened on April 25 is rel-
atively consistent, the area where his story shifts is key to our
analysis. In his asylum application and asylum interview, he
said he was taken by militia to a station in the morning and
when he left the station in the evening, he was beaten into un-
consciousness by unknown individuals and ended up in a
hospital. Critically, in those accounts, he did not mention any
attack by the government officials who detained him earlier
that day. However, at his hearing, he said police tortured him
throughout the day at the station and he took a cab home once

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No. 22-1973 7
released in the evening. In seeking asylum, Uulu needs to
show that his fear of persecution is “attributable to the ‘gov-
ernment or to a nongovernmental entity that the government
is unable or unwilling to control,’” so the question of whether
government officials ever tortured him on April 25 is im-
portant to his application. Cruz-Martinez, 885 F.3d at 463
(quoting Almutairi v. Holder, 722 F.3d 996, 1002 (7th Cir. 2013)).
Additionally, but less important, in the account he gave at his
hearing, he was attacked by the unknown individuals near his
home, not the station. He then woke up from the beating and
went to the hospital.
Uulu’s statements about the next day, April 26, varied as
well. According to his asylum application, he was in the hos-
pital. In his interview, he said he was taken to the police sta-
tion and held for eight hours. At his hearing, he said the police
asked him to come back on April 26, but he outwitted them
by saying he was sick and never returning to the station.
Uulu argues these inconsistencies are akin to those in Fer-
reira v. Lynch, where we held that “trivial” inconsistencies in
an applicant’s account are not enough to sustain an adverse
credibility finding. 831 F.3d 803, 810–11 (7th Cir. 2016). In Fer-
reira, the immigration judge found the applicant not credible
because she consistently alleged being raped by her common
law husband, but her accounts of when and where the assault
happened differed between her credible fear interview and
her hearing testimony. Id. at 807–08. The immigration judge
also relied on inconsistencies about whether the husband had
hit her child. Id. at 808. We disagreed with the immigration
judge in that case, pointing to medical records corroborating
the applicant’s accounts of abuse and rape, and consistencies

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8 No. 22-1973
in her account of the timing of one of the assaults. Id. at 810–
11.
Ferreira cannot save Uulu’s claim. Much of our analysis in
Ferreira was based on signs of unreliability in the asylum of-
ficer’s notes from the applicant’s credible fear interview. The
indica of unreliability plaguing the credible fear interview
meant inconsistencies between the interview and later ac-
counts by the applicant were less salient. See id. at 809 (“We
are not persuaded by the government’s contention that the
notes are reliable, especially given the pre-printed disclaimer
… [making] clear that the credible-fear interview is not meant
to be a detailed account of the events supporting an appli-
cant’s asylum claim.”). In Uulu’s case, there are no similar
challenges to the reliability of the asylum officer’s notes. We
defer to the immigration judge’s credibility determinations
and only overturn them “in extraordinary circumstances” not
present here. Dai v. Garland, 24 F.4th 628, 635 (7th Cir. 2022)
(quoting Omowole v. Garland, 6 F.4th 734, 742 (7th Cir. 2021)).
Uulu’s counsel also asserts that the immigration judge’s
adverse credibility finding fails to acknowledge the difficulty
he experienced while trying to remember events that oc-
curred years earlier. There can be limits to a person’s recollec-
tion, but there is a key problem with the assertion as applied
to Uulu’s case: he does not develop this argument in his peti-
tion for review. He cites a single case and then alleges, with-
out a record citation, that he explained at the immigration
hearing that “it was only now years later that he is able to fully
recollect everything that took place and talk about it because
of the trauma that he had suffered.” It is not our duty to hunt
for the proof of this statement in the record. See Long v. Teach-
ers' Ret. Sys. of Illinois, 585 F.3d 344, 349 (7th Cir. 2009) (“To

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No. 22-1973 9
present an argument on appeal, a party must develop its po-
sition by providing citation to the relevant portions of the rec-
ord and supporting authority.” (citing Fed. R. App. P.
28(a)(9)(A))). We did locate one instance in the removal hear-
ing where Uulu was asked about a beating on April 24 and
responded that he was “in a state of stress” at his asylum in-
terview.
Uulu’s scant assertion about trauma and memory in his
petition for review, and the lack of record evidence support-
ing that assertion, are a far cry from the facts that influenced
the outcome in cases like Ferreira. See also INS v. Phinpathya,
464 U.S. 183, 188–89 n.6 (1984) (stating counsel’s argument—
in that case an argument about mootness—was meritless be-
cause the record did not support it). What makes Uulu’s per-
functory argument before us so puzzling is that Uulu did at-
tempt to ground the argument in the record before the BIA.
In his BIA briefs, Uulu (1) pointed to difficulties in translating
from Kyrgyz to English (without making any specific claims
of inaccuracy) and (2) contended that the inconsistency be-
tween a beating outside the police station or near his home
was the result of traumatic stress. But these two observa-
tions—which Uulu did not mention in his petition to us—can-
not overcome the inconsistent recounting of key points in his
asylum claim, nor do they suggest, as Uulu attempts to do
with his heavy reliance on Ferreira, that the asylum interview
was too unreliable for inconsistencies between it and later
hearings to matter.
B
When “faced with an adverse credibility finding based on
material inconsistencies or omissions,” a petitioner can

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10 No. 22-1973
counter that finding by pointing to corroborating evidence in
the record. Torres v. Mukasey, 551 F.3d 616, 633 (7th Cir. 2008).
Uulu has attempted to do just that by highlighting the state-
ments from his wife, his brother, a fellow protester, and his
lawyer in Kyrgyzstan, plus documentation like the medical
report from one of his attacks.
We share some of Uulu’s concerns about the way the im-
migration judge weighed this corroborating evidence. For ex-
ample, the judge rejected letters from Uulu’s Kyrgyz attorney
and the fellow protester in part because the judge had already
found Uulu not credible. The judge pointed to the First Cir-
cuit’s decision in Yong Xiu Lin v. Holder, 754 F.3d 9 (1st Cir.
2014), as support for this outcome. However, the First Cir-
cuit’s law on this aspect of credibility findings is narrower
than the judge supposed: the Lin court noted credibility find-
ings “can inform the evidentiary weight” ascribed to “unau-
thenticated documents in a later, related proceeding.” 754
F.3d 9 at 15–16. The petitioner in that case was on her second
motion to reopen removal proceedings, seven years after the
denial of the first motion and twelve years after she was orig-
inally ordered removed. Id. at 10–11. The same was true in Le
Bin Zhu v. Holder, 622 F.3d 87, 90, 92 (1st Cir. 2010), which held
that an immigration judge’s initial adverse credibility finding,
affirmed by the BIA, supported the BIA’s decision over a year
later, on a motion to reopen, to accord limited evidentiary
value to an unauthenticated document. Uulu’s case is factu-
ally distinct from cases like Lin and Zhu: He is still in the same
proceeding, so the First Circuit decisions do not compel the
immigration judge to give diminished weight to the letters
from his attorney and fellow protestor because the judge had
already found Uulu not credible.

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No. 22-1973 11
Nevertheless, Uulu’s supporting documents introduce
discrepancies that further weaken his claim. The statements
from his wife and brother both say he went to a protest and
then came home on April 24, but they do not mention Uulu
being arrested or injured; only the fellow protester mentions
torture and attempted extortion on April 24. Uulu’s wife and
brother agree on the timeline of April 25: he was arrested by
the government in the morning, released in the evening, and
then beaten up by unknown individuals and left in a ditch.
However, neither account mentions Uulu being detained the
next day. The accounts of his neighbors differ slightly too:
three neighbors say Uulu was threatened by police on April
24, while two neighbors say he was threatened two days later,
on April 26. Uulu’s wife references similar intimidation, but
several days after April 26.
The medical record does corroborate an attack by un-
known individuals on April 25, just as Uulu consistently tes-
tified, and just as his wife and brother described. But as we
have explained, in seeking asylum, an applicant needs to
show that their fear of persecution is “attributable to the ‘gov-
ernment or to a nongovernmental entity that the government
is unable or unwilling to control.’” Cruz-Martinez, 885 F.3d at
463 (quoting Almutairi v. Holder, 722 F.3d 996, 1002 (7th Cir.
2013)). Uulu’s evidence does not rise to that level: the ac-
counts of action taken directly by government officials carry
the greatest weight and have the most inconsistencies, while
the attack he has substantiated the most was by unknown ac-
tors with no known relationship to the government. See Jonai-
tiene v. Holder, 660 F.3d 267, 270 (7th Cir. 2011) (“persecution
… does not encompass purely private actions.”)

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12 No. 22-1973
III
Uulu’s petition is beset with conflicting information about
important elements of his persecution claim, and his support-
ing documents do not resolve the bulk of these conflicts. For
these reasons, we decline to overturn the immigration judge’s
credibility finding, and by extension, DENY the petition for
review.

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