Kantoni, Tomadjah v. Gonzales, Alberto R. ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4135
TOMADJAH KANTONI,
Petitioner,
v.
ALBERTO R. GONZALES,
Respondent.
____________
On Petition to Review an Order of the
Board of Immigration Appeals.
No. A96 149 304
____________
ARGUED AUGUST 9, 2006—DECIDED AUGUST 28, 2006
____________
Before POSNER, COFFEY, and EASTERBROOK, Circuit Judges.
POSNER, Circuit Judge. The immigration judge, seconded
by the Board of Immigration Appeals, denied the peti-
tioner’s claim of asylum on the ground that she had failed to
prove that she had been persecuted on the basis of her
political views, as she claimed. A number of errors in the
immigration judge’s opinion require that we grant the
petition for review and return the matter to the immigration
authorities for further consideration of her claim.
Tomadjah Kantoni is a native of the African nation of
Togo. She testified as follows. In 1976, when she was 18, she
was selected along with other girls to dance for the presi-
2 No. 05-4135
dent of Togo, Gnassingbé Eyadéma. The next day he had
her brought to his residence, where he raped her. She
believed that his motivation in doing so was, in part
anyway, to retaliate against her father for her father’s
having criticized the president. (She did not say so in her
asylum application, but did in response to a question put to
her by her lawyer at the hearing before the immigra-
tion judge.)
In 1991, she joined the Community of Action for Renewal
(CAR), a political party opposed to the president. The
following year her neighborhood was attacked by soldiers,
who broke into homes of suspected members of the opposi-
tion. The petitioner was away at the time and it is unclear
whether her home was damaged. But the workshop that she
owned was destroyed after soldiers asked for the “boss”
and were told she was away. Before the attack, moreover, a
group of soldiers led by the president’s son had come
looking for her. In reaction to these events, the petitioner’s
husband, in fear, joined the president’s party.
After this the petitioner lived at home only intermit-
tently but continued to work for CAR, and during this
period she received threatening anonymous phone calls.
Then in 2002, shortly after returning from a year in the
United States (where apparently she was visiting a cous-
in), she was arrested and jailed. The next day a man
visited her in her cell and told her that persons such as
herself who belonged to the same tribe as the president
owed their loyalty to him and that if she didn’t switch her
allegiance to the president’s party “very severe measures”
would be taken against her. She promised to do so and
was released. Later she received an anonymous phone call
in which the caller threatened that she would be arrested
again. She fled to the United States and sought asylum.
No. 05-4135 3
Two months after leaving Togo, she learned that two
of her daughters who still lived there had while coming
home from school with other students been accosted by
three men in a car who were wearing insignia that identified
them as members of the president’s party. One of them got
out of the car and walked up to the daughters and asked
them where their mother was. They answered that she’d
gone away. Not satisfied with the answer, he took one of the
daughters by the hand. The two other men now left the car
and approached, one of them brandishing a pair of hand-
cuffs. The students began screaming and throwing rocks at
the men, and were joined in this by bystanders, including
women who were selling goods by the side of the road. The
men were driven off. But upon learning of the incident the
petitioner’s husband, who was still in Togo, packed the
daughters off to the neighboring country of Benin.
A professor of African history testified at the immigration
hearing that political affiliations in Togo run along ethnic
lines, so that a member of the president’s tribe who joined
the opposition would indeed be regarded as the president’s
enemy. The president has since died but has been succeeded
by one of his sons, and there has been no change in regime
policies. Apparently he is not the son who had led the raid
in which the petitioner’s workshop was destroyed. The son
she named in both her asylum application and her testi-
mony at the hearing before the immigration judge is Ernest,
and the new president is Faure. At argument her lawyer
said that it was a mistake and that it really was Faure who
had led the raid, but this is almost certainly wrong. It is
Ernest who is (or was) a military leader; Faure has a civilian
background. IRINnews.org, “TOGO: Gnassingbe Digging in
as the New Front Man for Togo’s Long-Ruling Elite” (Feb.
19, 2005), http://www.irinnews.org/report.asp?ReportID=
45664& SelectRegion=West_Africa&SelectCountry=TOGO.
4 No. 05-4135
If the petitioner’s testimony is believed, she was a vic-
tim of persecution because of her political views. On the
critical issue of her credibility, the immigration judge
remarked that he “largely accepted” her testimony as
credible, but he unhelpfully failed to indicate what part of it
he did not believe. At argument the government’s lawyer
asked us to assume that the judge thought the petitioner’s
testimony entirely credible. Even so, the lawyer argued, the
judge was justified in inferring that the petitioner had not
been persecuted in the past and had no well-founded fear of
being persecuted should she be returned to Togo.
But the reasons that the judge gave for drawing these
inferences are not supported by the record or consistent
with his having believed the petitioner’s testimony. He
thought she had been raped because the president made
a practice (as indeed he did) of raping girls selected to dance
for him, but her testimony that the rape was connected to
her father’s previous criticism of the president was not
inconsistent with the president’s having such a practice, for
it is not suggested that he raped all the girls who danced for
him. The petitioner’s testimony about the motive for the
rape was speculative, and could well have been rejected on
that ground; but that was not the immigration judge’s
ground.
Concerning the raid on the petitioner’s neighborhood, the
judge thought it unlikely that soldiers would ransack the
entire neighborhood in order to punish her. But her testi-
mony was that the raid was aimed at the president’s
opponents, not just at her. Nor did the immigration judge
suggest any basis for his belief that Togolese soldiers would
not ransack an entire neighborhood in search of one person.
If immigration judges want to base their findings on insights
into the political or military or social culture of the asylum
No. 05-4135 5
seeker’s country, that is fine, but they must indicate a
knowledge of the culture. We repeat our recent suggestion
that an asylum equivalent of the Social Security Administra-
tion’s vocational experts be retained to testify about relevant
aspects of national culture. Banks v. Gonzales, 453 F.3d 449,
453-54 (7th Cir. 2006). As we pointedly remarked in Banks,
“An IJ is not an expert on conditions in any given country,
and a priori views about how authoritarian regimes con-
duct themselves are no substitute for evidence—a point that
we have made repeatedly, but which has yet to sink in.” Id.
at 453.
The judge dismissed the petitioner’s arrest and deten-
tion as acts of persecution because of the brevity of the
detention and the fact that she was not beaten or other-
wise manhandled. But the significance of the incident is that
her captors gave her the bleak choice of giving up
her political views or finding herself on the receiving end of
“very severe measures.” A credible threat that causes a
person to abandon lawful political or religious associations
or beliefs is persecution. Bucur v. INS, 109 F.3d 399, 405 (7th
Cir. 1997) (“it is virtually the definition of religious persecu-
tion that the votaries of a religion are forbidden to practice
it”); Krotova v. Gonzales, 416 F.3d 1080, 1086-87 (9th Cir.
2005); Mamouzian v. Ashcroft, 390 F.3d 1129, 1137 n. 6 (9th
Cir. 2004). As for the judge’s suggestion that the petitioner
had nothing to fear because she is of the same ethnicity as
the president, that is the very opposite of the truth; and
likewise his statement that her fears are groundless because
her husband has joined the president’s party—it is her
refusal to do so that endangers her.
The judge also said that if the petitioner had had any
real fear of persecution, she would not have returned to
Togo in 2002. But her husband and daughters were there;
and it was shortly after she returned that she was arrested.
6 No. 05-4135
With regard to the incident with two of the daughters, the
immigration judge committed two serious mistakes. The
first was to say that the petitioner’s testimony about the
incident was too sketchy to permit an inference that it was
persecution. The judge’s summary of her testimony was
indeed sketchy, but her testimony, which we summarized
earlier, was not. It was detailed and the only inference it
supported was that the president’s henchmen were going to
arrest the daughters in an effort to learn the whereabouts of
the mother. The second mistake was his saying that the
daughters were in the United States and therefore the
petitioner should have brought them to the hearing so that
they could fill in the missing details. By the time of the
hearing, two of her daughters were in the United States, but
the two daughters involved in the incident were still in
Benin.
Finally, the immigration judge should not have consid-
ered each alleged incident of persecution in isolation, rather
than considering what kind of pattern they composed. Cecaj
v. Gonzales, 440 F.3d 897, 899 (7th Cir. 2006); Koval v. Gonza-
les, 418 F.3d 798, 806 (7th Cir. 2005); Toure v. Attorney General
of the United States, 443 F.3d 310, 318-19 (3d Cir. 2006);
Poradisova v. Gonzales, 420 F.3d 70, 79-80 (2d Cir. 2005);
Baballah v. Ashcroft, 367 F.3d 1067, 1076 (9th Cir. 2004). As
these cases make clear, a rape, the destruction of one’s
business, threats, detention, more threats, and threatened
seizure of one’s children, all emanating from
the government and all on account (except perhaps the rape)
of peaceful political opposition to the nation’s ruler, add up
to persecution.
When the person seeking asylum proves that she has been
persecuted in the past, the burden shifts to the government
to prove that she has no solid reason to fear being perse-
No. 05-4135 7
cuted in the future. 8 C.F.R. § 208.13(b)(1); Cecaj v. Gonzales,
supra, 440 F.3d at 900. Usually the government tries to carry
the burden either by showing changed conditions or by
showing that the persecution of people in the petitioner’s
group is localized and she will be safe elsewhere in her
country. Neither is suggested.
The petition for review is granted, the order of the Board
of Immigration Appeals vacated, and the matter returned to
the Board for further proceedings consistent with this
opinion.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-28-06