Djouma, Mahamat v. Gonzales, Alberto R. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2086
MAHAMAT DJOUMA,
Petitioner,
v.
ALBERTO R. GONZALES,
Respondent.
____________
On Petition to Review an Order of the
Board of Immigration Appeals.
No. A75 408 106
____________
ARGUED OCTOBER 18, 2005—DECIDED NOVEMBER 15, 2005
____________
Before POSNER, KANNE, and WILLIAMS, Circuit Judges.
POSNER, Circuit Judge. The immigration judge rejected
Mahamat Djouma’s claim of asylum and ordered him
removed (deported), and the Board of Immigration Appeals
summarily affirmed. Djouma is a citizen of Chad, and the
nephew of a man named Mahamat Garfa. In 1994, Garfa,
formerly the nation’s army chief and later its minister of
mines and energy, fled Chad, either because he was sus-
pected of embezzling government funds or because of
political disagreement with the country’s president; perhaps
both were factors. In exile he became, and so far as appears
remains, active in a movement to forcibly overthrow the
2 No. 04-2086
existing regime in Chad. Immediately after Garfa fled Chad,
Djouma was arrested, jailed, interrogated about Garfa’s
whereabouts, whipped, and after four days released when
a friend of his uncle’s bribed a guard. Djouma fled to
another African country, Cameroon, and remained there for
two years, without seeking asylum in that country, before
coming to the United States. After landing here, he went to
Canada and applied for asylum together with a cousin who
had been arrested in Chad at the same time as Djouma. A
Canadian immigration judge turned down their applica-
tions and Djouma then returned to the United States and
applied for asylum here.
The bulk of the (U.S.) immigration judge’s opinion is
devoted to the issue of Djouma’s credibility, and here the
judge stumbled. She began by noting that the Canadian
immigration judge had found the cousins’ story incredible,
in part because they had given different descriptions of
Garfa’s house in which they had been living when they
were arrested. But Djouma testified in the present proceed-
ing that the reason for the discrepancy was that Garfa
had two wives and two homes (one for each wife), and
that the cousins had not been living in the same one, so
naturally their descriptions differed. The immigration judge
thought it incredible that the cousins’ Canadian lawyer
would not have told the Canadian immigration judge this
if it were true. But the only evidence bearing on that
question is a garbled transcript of the Canadian immigration
hearing, with missing pages and mysterious references,
such as the reference to “a rather meek explanation as to the
variable nature of the eating location within the home.” If
the U.S. immigration judge wanted to rely on the Canadian
proceeding to help her resolve the question of Djouma’s
credibility, she should at least have ordered a complete copy
No. 04-2086 3
of the hearing transcript from the Canadian immigration
authorities.
She also thought it suspicious that Djouma had not
applied for asylum in Cameroon. Djouma testified that the
reason he didn’t is that he believed that Cameroon turns
down all asylum applications, so that the only conse-
quence of his applying for asylum would have been de-
portation to Chad. The judge gave no reason for thinking
that Djouma was misrepresenting his belief; nor was
any other evidence concerning Cameroon’s policy on
asylum presented. The judge also thought it incredible that
Djouma could find his uncle in Benin, to which the
uncle had fled, by looking him up in the phone book.
(Djouma’s purpose was to elicit a letter from his uncle
supporting his application for asylum; the uncle obliged.)
The judge thought that since the uncle was wanted by Chad,
he would conceal his presence in Benin. But whether he
would or would not would depend on factors that the judge
did not mention, such as relations between Benin and Chad
(maybe Benin is hostile to Chad and happy to provide
protection to the enemies of the Chadian regime—another
matter on which the record is silent) and whether Chad’s
security service hunts down enemies of the nation in Benin.
We understand the dilemma facing immigration judges in
asylum cases. The applicant for asylum normally bases his
claim almost entirely on his own testimony, and it is
extremely difficult for the judge to determine whether the
testimony is accurate. Often it is given through a translator,
and even if the applicant testifies in English, as a foreigner
his demeanor will be difficult for the immigration judge to
“read” as an aid to determining the applicant’s credibility.
Unfortunately, the Department of Homeland Security and
the Justice Department, which share responsibility for
4 No. 04-2086
processing asylum claims, have, so far as appears, failed to
provide the immigration judges and the members of the
Board of Immigration Appeals with any systematic guid-
ance on the resolution of credibility issues in these cases.
The departments have not conducted studies of patterns of
true and false representations made by such applicants, of
sources of corroboration and refutation, or of the actual
consequences to asylum applicants who are denied asylum
and removed to the country that they claim will persecute
them. Without such systematic evidence (which the State
Department’s country reports on human rights violations,
though useful, do not provide), immigration judges are
likely to continue grasping at straws—minor contradictions
that prove nothing, absence of documents that may in fact
be unavailable in the applicant’s country or to an asylum
applicant, and patterns of behavior that would indeed be
anomalous in the conditions prevailing in the United States
but may not be in Third World countries—in an effort to
avoid giving all asylum applicants a free pass. The depart-
ments seem committed to case by case adjudication in
circumstances in which a lack of background knowledge
denies the adjudicators the cultural competence required to
make reliable determinations of credibility.
The immigration judge had, however, an alternative
ground for denying Djouma’s claim of asylum, which is that
he had failed to prove that he had been persecuted or was
likely to be if he returned to Chad. So far as appears, the
only interest the Chadian government had in Djouma was
that it thought he might know where Garfa had fled to. That
was eleven years ago. If Garfa is still in the Benin phone
book, Chad has no further interest in Djouma; if Garfa is
once again in hiding, there is no indication that Djouma
knows where he is.
No. 04-2086 5
But a deeper point is that if Chad’s only interest in
Djouma is as a material witness to Garfa’s location, Djouma
is ineligible for asylum. Being a material witness, even to
a political crime (such as insurrection), is no more a
status that the asylum law protects than being a criminal
suspect is—even a suspect in a political crime. Lwin v. INS,
144 F.3d 505, 509 (7th Cir. 1998); Dinu v. Ashcroft, 372 F.3d
1041 (9th Cir. 2004); Shardar v. Ashcroft, 382 F.3d 318, 323-24
(3d Cir. 2004); cf. United Nations High Commissioner for
Refugees, Handbook on Procedures and Criteria for Determining
Refugee Status Under the 1951 Convention and the 1967 Protocol
Relating to the Status of Refugees ¶ 84 (HRCP/IP/
4/Eng/Rev.1 Jan. 1992). Only persecution “on account of
race, religion, nationality, membership in a particular social
group, or political opinion” can support a claim of asylum.
8 U.S.C. § 1101(a)(42).
It is not as if Djouma shared Garfa’s political views
or belonged to his movement, and was complaining that
Chad would persecute him on account of his politics; that
would be a valid basis for seeking asylum. Moreover, the
term “membership in a particular social group” would
cover this case regardless of Djouma’s political activities
or opinions if Chad had decided, as a method of collective
punishment of its political enemies, to persecute the mem-
bers of their families. Lwin v. INS, supra, 144 F.3d at 509-13;
Bernal-Rendon v. Gonzales, 419 F.3d 877, 881 (8th Cir. 2005);
Lopez-Soto v. Ashcroft, 383 F.3d 228, 235-38 (4th Cir. 2004);
Gebremichael v. INS, 10 F.3d 28, 36 (1st Cir. 1993). But there
is no indication of that; several members of Djouma’s (and
therefore Garfa’s) family remain in Chad, apparently
undisturbed.
Oddly, although Djouma’s brief does not argue for re-
lief under the Convention Against Torture and Other Cruel,
6 No. 04-2086
Inhuman or Degrading Treatment or Punishment, 1465
U.N.T.S. 85 (1984); see 8 C.F.R. §§ 208.16, 208.18, 1208.16,
1208.18, the government argues that he is not entitled to
such relief. It relies on the immigration judge’s finding that
although Djouma “claims that he was whipped [during his
four days in jail], there is no indication in the file whatso-
ever that he was in need of medical treatment or that he
suffered any damage as a result of the mistreatment while
held in jail.” The immigration judge seems to have thought
that in being whipped, Djouma had merely been “ha-
rassed.” Skilled torturers leave no marks on the victim’s
body, however; and there is a level of whipping that
amounts to torture even under the Convention’s restrictive
definition of “torture.” 8 C.F.R. §§ 208.18(a)(1),(a)(2); see
Prela v. Ashcroft, 394 F.3d 515, 519 (7th Cir. 2005); Nuru v.
Gonzales, 404 F.3d 1207, 1218 (9th Cir. 2005); cf. Siderman de
Blake v. Republic of Argentina, 965 F.2d 699, 717 (9th Cir.
1992). Moreover—and this could be critical in a case such as
this—the Convention does not protect only victims of
persecution. E.g., Niang v. Gonzales, 422 F.3d 1187, 1196 (10th
Cir. 2005).
Djouma’s problem, and the reason his lawyer sensibly
abandoned any CAT claim, is that Djouma cannot show that
“it is more likely than not that he . . . would be tortured if
removed to the proposed country of removal.” 8 C.F.R. §
208.16(c)(2); Comollari v. Ashcroft, 378 F.3d 694, 695 (7th Cir.
2004). In fact, since it is unlikely that he has any information
of interest to the Chadian authorities, it is more likely than
not that he will not be tortured.
The petition for review is therefore
DENIED.
No. 04-2086 7
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-15-05