Apouviepseakoda, Afi v. Gonzales, Alberto ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3752
AFI M. APOUVIEPSEAKODA,
Petitioner,
v.
ALBERTO R. GONZALES,
Respondent.
____________
Petition for Review of an Order of
the Board of Immigration Appeals.
No. A78-863-025
____________
ARGUED SEPTEMBER 20, 2006—DECIDED FEBRUARY 2, 2007
____________
Before EASTERBROOK, Chief Judge, and POSNER and
EVANS, Circuit Judges.
EVANS, Circuit Judge. Afi Marie Apouviepseakoda is a
native and citizen of Togo who came to the United States
in 2002 without a valid visa. She was paroled into the
country while awaiting a final determination on her
applications for asylum, withholding of removal, and relief
under the Convention Against Torture (CAT). All of these
were denied by an immigration judge (IJ) who ordered
her removal, a decision subsequently affirmed by the
Board of Immigration Appeals (BIA). She now petitions for
our review, challenging both the IJ’s finding that she
was not credible and the BIA’s conclusion that the IJ’s
handling of her hearing did not violate due process.
2 No. 05-3752
Apouviepseakoda says that her troubles began as a
result of her husband’s business relations with the
mayor of Lomé, Togo’s capital city. The mayor is a mem-
ber of the Union des Forces du Changement, or UFC, an
opposition political party to which Apouviepseakoda also
belongs. Although her husband is not a member,
Apouviepseakoda testified at her hearing that he had
business contracts with the mayor to handle garbage
collection for the city. She also vaguely explained that he
had “financed” and “given money” to the mayor; it is
unclear whether she was referring to something beyond
his business obligations.
In any case, the mayor was jailed, and at some point the
government became interested in Apouviepseakoda’s
husband. One day, a warning was received from a rela-
tive that government forces were looking for the husband,
and he immediately left the country. Apouviepseakoda
remained behind with the children and returned to their
home.
She says that on the following day government troops
came to her home, said nothing to her, and tore the place
upside down looking for her husband before carrying
away his picture and personal documents. They asked
her about his whereabouts, and when she told them that
she did not know where he was she says they beat her
with their fists and batons for more than 30 minutes.
When they left, they told her to call if her husband turned
up. She says that she immediately went to a Lomé hos-
pital for treatment, where she remained for 10 days.
Upon her discharge, Apouviepseakoda and her children
stayed with her mother in another part of the country
for a few days before sneaking into Ghana and eventually
coming to the United States. Because she had already
obtained passports and travel visas to the U.S.—she says
for a vacation that they ended up not taking—she and her
No. 05-3752 3
children had the necessary documents to travel to the
United States, which they did on October 10, 2001.1
But Apouviepseakoda did not apply for asylum in
October of 2001. Instead, after 6 months, she left her
children and returned to Togo in an effort, she says, to
secure money and track down her husband, whom she
believed to be in Ghana. She was assisted into the
country by a friend, a lieutenant in the armed forces. She
also testified that after her return to Togo, a warrant
for her arrest was issued. She again stayed with her
mother. Six days after she arrived, another warrant was
issued, followed 3 days later by a summons requiring her
to appear before the police. Notwithstanding these obsta-
cles, Apouviepseakoda testified at her hearing that she
returned to the Lomé hospital to see a gynecologist.
Ultimately, she gathered some money and, finding no
information on her husband, again obtained the assist-
ance of her friend the lieutenant and left the country to
return to the United States. This time, after landing
in Chicago, she requested asylum and other relief. Pend-
ing the resolution of that application, she was paroled
into the country.
After a hearing, the IJ issued a written decision find-
ing that Apouviepseakoda’s testimony was not credible
and that her offered corroborating documentary evidence
only raised additional questions. He found that she
failed to establish eligibility for asylum, much less with-
holding of removal and CAT relief, and he ordered her
removed to Togo. On appeal, the BIA adopted and af-
firmed the IJ’s decision as to the merits and rejected
1
Apouviepseakoda actually traveled to the United States
from Togo three times: 2000 landing in Dallas, 2001 in New York,
and 2002 in Chicago.
4 No. 05-3752
Apouviepseakoda’s argument that the IJ’s handling of her
hearing constituted a denial of due process.
In this appeal, Apouviepseakoda repeats the argu-
ments she made to the BIA. She first argues that the IJ’s
adverse credibility finding is not supported by substan-
tial evidence and is based instead upon conclusions that
bear no reference to the record. Second, she contends that
the IJ violated her due process rights because he improp-
erly took over her direct examination and began asking her
questions to discredit her testimony. She also alleges that
he wrongly stopped the hearing and should not have relied
on an offer of proof from her counsel rather than listen
to the live testimony of two witnesses who were present.
We turn first to her second argument, because if
Apouviepseakoda was prejudiced by an unfair hearing
we must grant her petition and remand for further pro-
ceedings. The BIA’s determination that the immigration
judge did not violate due process is a conclusion of law,
Podio v. INS, 153 F.3d 506, 509 (7th Cir. 1998), which
we therefore review de novo. See Borca v. INS, 77 F.3d
210, 214 (7th Cir. 1996).
The Fifth Amendment guarantees due process in re-
moval proceedings, Reno v. Flores, 507 U.S. 292, 306
(1993). But before we get to the Constitution, there are
statutory, 8 U.S.C. § 1229a(b)(4), and regulatory, 8 C.F.R.
§ 1240.1(c), provisions that govern the conduct of those
proceedings. Apouviepseakoda has not challenged the
constitutionality of these, and indeed she was wise not
to, for we have already explained that “[a]ny proceeding
that meets these requirements satisfies the Constitu-
tion as well.” Rehman v. Gonzales, 441 F.3d 506, 508 (7th
Cir. 2006); see also Rodriguez Galicia v. Gonzales, 422 F.3d
529, 538 (7th Cir. 2005). In other words, Apouviepseakoda,
like many before her, has made the mistake of employ-
ing “flabby constitutional arguments to displace more
No. 05-3752 5
focused contentions,” Rehman, 441 F.3d at 508-09; see also
Boyanivskyy v. Gonzales, 450 F.3d 286, 292 (7th Cir. 2006);
Pronsivakulchai v. Gonzales, 461 F.3d 903, 907 (7th Cir.
2006), and is really arguing that the IJ’s hearing vio-
lated these statutory and regulatory provisions. We shall
treat her argument as though it were properly made in
this fashion.
Under those provisions, a lawful removal proceeding
is one in which “[t]he immigration judge shall receive and
consider material and relevant evidence, rule upon objec-
tions, and otherwise regulate the course of the hearing,”
8 C.F.R. § 1240.1(c), and “the alien shall have a reason-
able opportunity to examine the evidence against the
alien, to present evidence on the alien’s own behalf, and
to cross-examine witnesses presented by the Govern-
ment . . . .”, 8 U.S.C. § 1229a(b)(4)(B). In order to succeed
in challenging the legality of such a hearing, the alien
must show not only that her “reasonable opportunity” was
denied, but also that she was prejudiced. Rehman, 441
F.3d at 509.
Apouviepseakoda argues that she was denied the
reasonable opportunity to be heard because the IJ “demon-
strated impatience, hostility, and a predisposition to
deny” her claims, took over her direct examination so as
to limit her time to testify on her own behalf, and im-
properly asked for an offer of proof from her counsel
rather than make additional time for the testimony of
two witnesses.
Congress has specifically authorized immigration
judges to operate in the dual role of decisionmaker and
prosecutor, see 8 U.S.C. § 1229a(b)(1) (granting the
immigration judge the authority to “administer oaths,
receive evidence, interrogate, examine, and cross-examine
the alien and any witnesses”). The IJ has “broad discre-
tion to control the manner of interrogation in order to
6 No. 05-3752
ascertain the truth,” Iliev v. INS, 127 F.3d 638, 643 (7th
Cir. 1997), but “that discretion is bounded by the appli-
cant’s right to receive a fair hearing.” Podio, 153 F.3d at
509; cf. LeTourneur v. INS, 538 F.2d 1368, 1370 (9th Cir.
1976) (“That this dual role of the [immigration judge]
is fair and proper under established standards of due
process is clear.”).
“We have previously given impatient and inappropriate
judges a pass on the theory that ‘[a]n immigration judge
is permitted to interrogate, examine, and cross-examine
the alien and any witnesses,’ ” Giday v. Gonzales, 434 F.3d
543, 549 (7th Cir. 2006) (citation omitted), because
“although one hopes that an immigration judge will
perform these tasks with patience and decorum befitting
a person privileged with this position, such failures to do
so do not in and of themselves create due process viola-
tions.” Diallo v. Ashcroft, 381 F.3d 687, 701 (7th Cir.
2004).
Although we have never held that such circumstances
alone establish the denial of a reasonable opportunity to
be heard, the closest cases are those in which “the ques-
tioning becomes so aggressive that it frazzles applicants
and nit-picks inconsistencies” until a petitioner “became
so distraught that the immigration judge was forced to
pause the proceedings to give ‘the [non-citizen] a chance
to collect herself,’ ” Giday, 434 F.3d at 549; see also Rodri-
guez Galicia v. Gonzales, 422 F.3d 529, 539 (7th Cir. 2005).
Instead, we have been more likely to find a denial where
an IJ bars “complete chunks of oral testimony that
would support the applicant’s claims,” Kerciku v. INS,
314 F.3d 913, 918 (7th Cir. 2002). This is not to say that
the specific nature of the IJ’s challenged actions is deter-
minative; “[i]n the end, we must determine whether, given
the totality of circumstances, the petitioner had a full
and fair opportunity to put on her case.” Rodriguez
Galicia, 422 F.3d at 538.
No. 05-3752 7
With respect to Apouviepseakoda’s hearing, we agree
that the IJ’s conduct was hardly a model of patience and
decorum.2 From the beginning of the hearing, the IJ
demonstrated intemperance, telling her: “if you force me
repeatedly to ask you to raise your voice I will not be
pleased. And also might indicate the posture of your
case as well.” Likewise, his efforts at cross-examination
occasionally took on an unseemly, mocking tone, such as
when he sought corroboration for her testimony that her
husband owned a radio station:
Q I see. Do we have anything to verify that that was
true other than your statements?
A. I have a photo.
Q I see. I see a photo too. I have photographs also in
high school where I took pictures with a radio trans-
2
So we agree, at least to some extent, with our dissenting
colleague’s view of the IJ’s performance. Yet the heavy crit-
icisms our colleague unloads on the IJ (his handling of the case
was “appalling” and the logic “gaps” in his 14-page decision
are “yawning chasms”) are farther than we want to go. But we
do agree with the dissent’s statement that: “One cannot but
sympathize with the difficulty under which the immigration
judges labor quite apart from their horrendous workloads,
which Congress and the Justice Department have done nothing
to try to alleviate.” The system is in turmoil as the nation’s
immigration judges (218 at last count) struggle to complete
some 350,000 cases a year, all without law clerks, bailiffs,
stenographers, and often competent lawyers and interpreters.
Often, immigration judges are hearing three contested hear-
ings a day and up to 15 in a week. As Judge John M. Walker, Jr.,
of the United States Court of Appeals for the Second Circuit, told
the Senate Judiciary Committee last April, “I fail to see how
immigration judges can be expected to make thorough and
competent findings of fact and conclusions of law under these
circumstances.”
8 No. 05-3752
mitter there. Does that mean that that is an operat-
ing business because you have a photograph?3
Also troubling is his incredulity at the different nature of
marital relations in Togo:
A. Yes. In Africa it is very difficult for a woman to be
involved in her husband’s business. Men conduct their
business in a different way.
Q. I see. So, when he goes to work in the morning you
don’t know where he’s going, is that what you’re
saying? He doesn’t tell you.
A. He tells me that he goes to work but I don’t follow
him to see where he, he’s would go.
Q. That’s amazing.
3
In fact, we are uncertain whether this particular exchange
was even necessary when Apouviepseakoda might have been
able to corroborate this part of her testimony by directing the
IJ to the radio station’s Web site (also found by a simple
Google search of “sport FM Togo,” which provides the link as
the first result on its list). The Web site offers other information
(in French) that might have been useful for the IJ to know as
well, such as Apouviepseakoda’s own position as “Membre du
Conseil d’administration” of the radio station (actually, her
biography on the Web site calls her the vice-president); the fact
that the station began broadcasting on September 14, 2001 (i.e.,
3 days before Apouviepseakoda says her husband fled the
country and 4 days before she was allegedly visited by the
soldiers); her previous experience as general director of the
“commerce establishment” El Shadai in Lomé (which may be
a pharmacy, see Annuaires Afrique République Togolaise,
PHARMACIE EL SHADAI, at http://www.togophonebook.com/
sante/pharmacies/ pharmacie-el-shadai-60486.html (last visited
Nov. 17, 2006); or that “she has used the radio establishment as
the launching point for her success.” See Membre du Conseil
d’administration: APOUVIE Afi Marie, at http://inovix.africa-
web.org/sportfm/akouvi.htm (last visited Nov. 17, 2006).
No. 05-3752 9
JUDGE TO INTERPRETER
Q. You want to tell her that that’s amazing. You want
to tell her.
But we do not believe that these flaws give rise to
anything approaching the “close case” described in Giday.
There is nothing in the record to suggest that
Apouviepseakoda was frazzled or distraught as a result
of the IJ’s actions. And although Apouviepseakoda com-
plains that the IJ asked a majority of the questions at
her hearing, we have repeatedly emphasized that an IJ’s
frequent interruptions of or assumption of control over
testimony do not deprive a hearing of fairness where
those actions are designed to focus the hearing and ex-
clude irrelevant evidence. See, e.g., Rodriguez Galicia,
422 F.3d at 538; Kerciku, 314 F.3d at 917-18; Podio, 153
F.3d at 510; Kuciemba v. INS, 92 F.3d 496, 501 (7th Cir.
1996).
Our review of the record indicates that this was the aim
of the IJ’s efforts. Although the form of his interruptions
was occasionally jarring, their function was to focus
Apouviepseakoda’s testimony on matters that either
needed clarification or went to the heart of her credibility.
Early in the hearing, for example, after some initial
confusion as to whether Apouviepseakoda had been
previously married to another man, the IJ asked about
children by this first husband. At that point it became
clear that she had been referring to a first, unofficial
marriage to her current husband prior to a formal, legal
one in 1999. Had the IJ not interrupted to ask these
questions, he would have misunderstood the length of
her relationship to her husband—a key figure in her
asylum application.
The IJ next interrupted her for more details about her
work for the opposition party. After Apouviepseakoda
stated that she had participated in the distribution of
10 No. 05-3752
documents for the UFC, the IJ wanted more details about
these documents and whether she could corroborate her
testimony with any copies. Later, when her counsel
elicited testimony that she had contributed money to the
opposition, the IJ interrupted to ask if she had a formal
title within the party. Again, the questions were designed
to test her assertions that the government was targeting
her for her political opinion.
As the IJ eventually came to assert a more dominant role
in the hearing, he more readily assumed the statutorily
authorized role of interrogator, pressing Apouviepseakoda
for details about her husband’s work and his support of
the mayor in an effort to test her credibility on those
important issues. Notably, however, the IJ continued to
defer to her counsel to direct the topics of discussion in the
hearing. The IJ’s extended questions about her husband’s
professional activities followed questions by counsel that
raised that aspect of her application. When the IJ was
finished, he turned questioning back to Apouviepseakoda’s
counsel. Counsel next asked about her family, and the
IJ proceeded to question her in that area. Counsel
turned next to her husband’s ties to the opposition;
Apouviepseakoda’s counsel asked seven questions, and
the IJ interrupted where he felt he needed clarification.
Counsel again was directed to proceed and again raised a
new set of issues: the visit of soldiers to Apouviepseakoda’s
home. This time, counsel asked the majority of the ques-
tions, and the IJ interrupted as necessary.
The hearing followed this pattern throughout.
Apouviepseakoda’s counsel would draw attention to a
particular set of issues and ask some initial questions;
inevitably the IJ would interrupt for clarification or to
test the consistency and logic of her explanations. When
the IJ was satisfied or out of questions, counsel could
proceed and either raise unasked questions or begin
questioning Apouviepseakoda on a new topic.
No. 05-3752 11
The IJ’s approach did not impede Apouviepseakoda’s
“reasonable opportunity” to be heard. The record suggests
that her hearing lasted over 6 hours, and even as time
dragged on, the IJ purposefully extended to her counsel
several clear opportunities to bring out anything that he
felt had been missed. Then, when given the opportunity
to engage in redirect questioning, counsel did not suggest
that he needed more time to present evidence; he instead
indicated that he had only two remaining questions, both
of which he was able to ask. Next, the IJ gave him an
opportunity to present the offer of proof regarding his
client’s two witnesses. This was done without objection.
After describing the intended testimony of these witnesses,
counsel got another opportunity to offer information. When
he declined that chance, he was afforded a closing state-
ment. Even when that had ended and the government had
its own say, the IJ offered counsel “the very last word.” He
took advantage of this as well, entering a final statement
on Apouviepseakoda’s behalf. Finally, when he was
finished, the IJ asked him one more time: “[A]re you
through?” Only when counsel declined this final opportu-
nity did the hearing come to an end.
Standing alone, then, the IJ’s alleged lack of decorum
and his interrogating approach did not deny
Apouviepseakoda a reasonable opportunity to be heard.
If, however, Apouviepseakoda is right that the IJ also
improperly “bar[red] complete chunks of oral testimony
that would support [her] claims,” Kerciku, 314 F.3d at
918, she would have a better case. See Rodriguez Galicia,
422 F.3d at 539. Two corroborating witnesses,
Apouviepseakoda’s daughter Yawa Akoda and Comlan
Anani, an expert in Togo politics, appeared at her hearing
on her behalf with the intention of offering live testimony
in support of her claims. But in lieu of taking that testi-
mony, the IJ accepted an offer of proof regarding its
intended content—a decision which prompted no objec-
tion from her counsel.
12 No. 05-3752
The offer of proof indicated that Yawa Akoda was to
testify about the beating her mother suffered, the ransack-
ing of their house by soldiers, the visit her mother paid
to the hospital, and her own stay with her grandmother
during that hospital visit. The expert on Togo politics,
Anani, was “just background.” Anani would have testi-
fied regarding the political situation in Togo and the
atrocities committed there and was also aware of past
support provided to the opposition by Apouviepseakoda’s
husband. Because he had lived in the United States
since 1996, there was no indication that he had specific
knowledge of the key events in Apouviepseakoda’s story.
The typical context in which we have found fault with an
IJ’s decision to deny corroborating witness testimony
has arisen where an IJ has “made up his mind about the
case and was subsequently unwilling to listen to any
testimony,” despite the diligent insistence of the alien’s
counsel that the testimony speaks directly to the questions
the IJ is supposed to evalute in making the decision.
Kerciku, 314 F.3d at 918; see also Boyanivskyy, 450 F.3d
at 293; Pronsivakulchai, 461 F.3d at 907-08. Here, of
course, there was no objection by counsel to the IJ’s
decision not to take the live testimony.
But Apouviepseakoda argues that our decision in
Rodriguez Galicia suggests a different standard. There,
counsel failed to object to presenting an offer of proof
instead of taking the live testimony of two witnesses
who were experts on human rights and Latin America
(Rodriguez feared persecution in Guatemala). Notwith-
standing that failure, we held that the IJ’s refusal to hear
that testimony denied Rodriguez of a reasonable opportu-
nity to present evidence. 422 F.3d at 535, 538-40.
Apouviepseakoda contends that her case mirrors Rodri-
guez Galicia. But her view misreads our fundamental
concern with the IJ’s conduct in that case: The IJ unrea-
No. 05-3752 13
sonably imposed, without any rational explanation, a
very short time (about one hour) for Ms. Rodriguez to
present her case. 422 F.3d at 533. It was, to a major
extent, the time limit (which led to the refusal to take
live testimony) that denied Ms. Rodriguez a reasonable
opportunity to present her case. As we noted, “More
troubling . . . was the strict time limit that the IJ imposed
on Ms. Rodriguez, which in turn prevented her from
presenting the readily available testimony [of her cor-
roborating witnesses] . . . .” 422 F.3d at 439. By contrast,
as we have explained, Apouviepseakoda’s hearing lasted
more than 6 hours. And although time is not the only
factor to consider in evaluating the reasonableness of an
opportunity to present evidence, where there is lots of
time, as there was here, it certainly is a strong indicator
that a petitioner received a “reasonable opportunity” to
make her case.
So, in summary, we cannot say that Apouviepseakoda
was denied a reasonable opportunity to present evi-
dence in support of her application. Her counsel had
opportunities to elicit more direct testimony, rebut the
government’s case, and offer a summarizing final state-
ment. Also, the taking of an offer of proof in lieu of live
testimony met with no objection. When all is said and
done, we conclude that Apouviepseakoda had a fair, albeit
less than perfect, hearing. And besides that, to eventually
prevail on her claim, Apouviepseakoda would have to
show prejudice, yet her allegations of prejudice are
conclusory4 at best.
4
Apouviepseakoda says only that if the IJ had done things
differently “she would have had the opportunity to develop her
testimony and bring forth crucial aspects of her claim,” and “the
IJ would have had no basis in which to make his adverse
credibility finding.”
14 No. 05-3752
We turn next to whether the IJ’s adverse credibility
determination is supported by substantial evidence.
Although we normally review the decision of the BIA,
where, as here, that opinion merely supplements the
IJ’s opinion, we review the latter. Niam v. Ashcroft, 354
F.3d 652, 655-56 (7th Cir. 2004). An IJ’s finding regard-
ing credibility is entitled to highly deferential review,
Georgis v. Ashcroft, 328 F.3d 962, 968 (7th Cir. 2003); we
look only for specific, cogent reasons that bear a legitimate
nexus to the IJ’s finding. Ayi v. Gonzales, 460 F.3d 876,
880 (7th Cir. 2006). A credibility finding is overturned
only under extraordinary circumstances, Oforji v. Ashcroft,
354 F.3d 609, 613 (7th Cir. 2003), although we will not
uphold credibility determinations based on speculation
or conjecture rather than record evidence. To prevail,
Apouviepseakoda is required to show “not merely that the
record evidence supports a conclusion contrary to that
reached . . . but that the evidence compels that contrary
conclusion.” Bradvica v. INS, 128 F.3d 1009, 1012 (7th
Cir. 1997) (citing INS v. Elias-Zacarias, 502 U.S. 478, 481
n.1 (1992)).
There have been plenty of recent examples of the kinds
of cases in which an IJ’s findings do not pass muster, such
as when “[the immigration judge’s] analysis flatly failed
to engage with the evidence presented to him,” Niam v.
Ashcroft, 354 F.3d 652, 655 (7th Cir. 2004), “[t]here is a
gaping hole in the reasoning of the board and the im-
migration judge,” Kourski v. Ashcroft, 355 F.3d 1038, 1039
(7th Cir. 2004), the opinion “fails to build a rational bridge
between the record and the agency’s legal conclusion,”
Mengistu v. Ashcroft, 355 F.3d 1044, 1047 (7th Cir. 2004),
“[i]t is impossible to follow the immigration judge’s reason-
ing process” because of the brevity of the opinions below,
Guchshenkov v. Ashcroft, 366 F.3d 554, 557, evidentiary
material “was . . . completely ignored by the immigration
judge,” Yi-Tu Lian v. Ashcroft, 379 F.3d 457, 462 (7th Cir.
2004).
No. 05-3752 15
This case does not rise to that level. The IJ offered
a number of discrete reasons for his adverse credibil-
ity finding, and he pointed out several flaws in
Apouviepseakoda’s corroborating evidence.
For example, Apouviepseakoda submitted into evidence
several photographs that she claims were taken during
her 10-day stay at the hospital in September 2001 follow-
ing her alleged beating by soldiers. These photographs (she
said they were taken by her cousin “as a souvenir”),
however, offer no visual evidence of any wounds, much
less of the sort of external injuries one would expect to
find on a person only days removed from a serious beating.
The photographs also all bear the date stamp “03 4 16,”
although the “03” part of the stamp is difficult to see.
Asked about the photographs at the hearing,
Apouviepseakoda offered little, other than to say that
she had suffered serious injuries to her head and hip.
(She wears a headdress and gown in the photographs
and appears from her various poses to be reasonably
mobile—there is no indication of any bandages.) She
explained that her other injuries—“inflammations”
suffered from being severely beaten with batons—had
“disappeared.” Asked why the date stamp apparently
referred to April 16 of 2003 if the photographs were
taken in September 2001, she offered unhelpfully that
“I think it’s just a date because I wasn’t in Lomé in the
year 2003.”5
5
Apouviepseakoda says that she submitted the photographs
with her asylum application in August 2002, which would
preclude the 2003 date. This may be the case, although the
administrative record is not exactly clear. Exhibit 4 of the rec-
ord contains the asylum application and certificate of service, as
well as scores of pages of other exhibits labeled alphabetically
that may or may not have been included when the original
(continued...)
16 No. 05-3752
The IJ also focused upon Apouviepseakoda’s ability to
return to and stay in Togo without difficulty in April and
early May of 2002. Despite the fact that warrants had
been issued for her arrest, Apouviepseakoda entered and
departed the country at Togo’s main airport while using
her official Togolese passport. Questioned about this, she
explained, as we have said, that a family friend who
was also a soldier aided her entry and exit from the
country. Her asylum application, however, made no
mention of this assistance, and the IJ found it strange
that she had not contacted this soldier for help after the
2001 beating. Apouviepseakoda explained that she had
been too distraught to think of it. While in the country, she
5
(...continued)
application was filed: the application itself does not refer to
these documents or suggest additional attachments; the exhibits
offer no stamp to certify their filing with the original application;
and they do not carry any page numbers that would suggest
they are part of a package. Finally, while some of the documents
in these exhibits are dated based on when they were translated
into English, the photos offer no indication of when they were
placed there.
We think the IJ did not, as the dissent contends, conclusively
find that the photos were taken in 2003. He was simply troubled
by what he believed was an inconsistency between the date
stamp and her testimony, and by her inability to offer what he
thought was a satisfactory explanation to address his concerns.
It was Apouviepseakoda’s duty to explain the situation, and her
failure to do so could properly be considered by the IJ in making
his credibility determination. It could be that the date stamp is
inaccurate: Apouviepseakoda says she submitted the photographs
with her asylum application in August 2002, which would
preclude the 2003 date. Notably, however, the original photo-
graphs were not made available to the IJ at the hearing, and all
present were forced to review copies from which everyone
(including us, upon review of the record) had difficulty making
out the year (though not the numbers “4 16”).
No. 05-3752 17
stayed at her mother’s house, which was 2 hours distance
from her own in Lomé. She says she feared what might
happen if she returned there. But at her hearing she
revealed for the first time that during this time in Togo
she went to Lomé in any event to be treated for an infec-
tion by a gynecologist at the same hospital—the govern-
ment hospital—that she had visited after the alleged
beating.6
Also troubling to the IJ was Apouviepseakoda’s testi-
mony regarding why the soldiers who ransacked her home
and took away her husband’s documents did not also
take her and her children’s passports if they too were
targets. Her answer raises questions about both her
credibility and whether anyone other than her husband
was even a target:
Q. Can you tell me why the soldiers when they
allegedly ransacked your house did not take the
passports that you and your children had?
A. They didn’t find the passports.
Q. I see. They did find your husband’s documents
but they didn’t find your documents, is that what
you’re saying or your children documents?
A. We had two bedrooms. One for me and one for my
husband and we kept documents separately. One of
the sons had traveled with my husband abroad and
6
This April visit to a gynecologist prompts us to note a coinci-
dence not recognized by the IJ. Two of his doubts about the
September 2001 hospital visit arose from inconsistencies in
submitted documentary evidence: We have already mentioned
the photographs, but the IJ also wondered about the physician’s
stamp on a medical certificte offered to prove the September 2001
visit; the stamp listed the doctor’s specialties as “Gynecology-
Obstetrics, General Medicine.”
18 No. 05-3752
he had a passport so they did find that passport but
they didn’t take it.7
The IJ also believed that she was shifting her story
regarding the basis for the government’s concern with her
and her husband. At various points she suggested (1) that
she was being targeted for her own UFC membership
and her past work for her organization distributing fliers,
(2) that the danger stemmed from her husband’s widely
known business connections and friendship with the
jailed mayor, and (3) that the troubles began after a local
magazine article named her husband as a financial
contributor to the mayor.8
There is more. The IJ commented on the medical certifi-
cate submitted by Apouviepseakoda from her hospital
7
Indeed, although the IJ did not ultimately rule on whether
Apouviepseakoda’s claims, if true, established past persecution
or a well-founded fear of persecution, it seems to us that the
bulk of her story focuses on the possible persecution of her
husband—not of her. Although she was inconsistent,
Apouviepseakoda’s testimony usually suggested that she was
targeted because of her husband and not from her own support
of the opposition. With this in mind, it is telling that, as she
explained in her testimony, when the soldiers came to her house
they said nothing to her and instead entered her husband’s room
and ransacked his things, taking his personal papers away
and asking her only if she knew where he was. We have ex-
plained before that a noncitizen “cannot rely solely on the
persecution of her family members to qualify for asylum.” Ciorba
v. Ashcroft, 323 F.3d 539, 545 (7th Cir. 2003).
8
On their face these various accounts are not necessarily
inconsistent with one another. But there is more to a hearing
than just the transcript, and the IJ may have decided that
she was modifying her story in an effort to strengthen her
claims. Such are the intangible factors that underlie our practice
of deferring to an IJ’s credibility findings.
No. 05-3752 19
stay after the alleged beating. It is signed and dated on
September 18, 2001, yet appears to know the future,
explaining that Apouviepseakoda was released on Septem-
ber 28, 10 days later. Finally, the IJ referred to an August
6, 2003, letter to Apouviepseakoda from her father that
described difficult conditions in Togo, including troubles
experienced by some of her extended family, and warned
her to be careful about with whom she spoke and inter-
acted in the United States. Yet, the letter made no men-
tion of his daughter’s alleged beating or the warrants
in Togo for her arrest.
Taking all of this together, we cannot say that the IJ’s
adverse credibility finding is so deeply flawed. This is not
to say that the IJ’s analysis is a model to be emulated—for
example, his apparent expectation that Togolese medical
practice mirrors the way things are done in the U.S.
strikes us as particularly odd. But we can find no basis
to conclude that—as our standard of review requires—
the record evidence compels the conclusion that
Apouviepseakoda was credible and that the IJ was obli-
gated to believe her testimony.
Before signing off, and at the risk of repeating ourselves,
we add a few comments concerning the bookend para-
graphs of our esteemed colleague’s vigorous dissent. In his
opening paragraph, he says the primary issue is whether
the IJ’s determination “that the petitioner lied” is sup-
portable. But “lied” is a rather harsh word to use in
emotionally charged immigration cases. Obviously, the
petitioner would rather live in America than in Togo. Who
can blame her? And, like all petitioners, she knows her
chances of winning an asylum claim are significantly
enhanced if her story of persecution is made more com-
pelling. In a situation like this, even if a petitioner doesn’t
exactly “lie,” the temptation to embellish and exaggerate
a story is obvious. Immigration judges recognize this. So
should august court of appeals judges.
20 No. 05-3752
In his concluding paragraph, our colleague says we are
“wrong to think” that as a reviewing court we “should
uphold immigration judges’ incompetent findings of fact.”
With all due respect, this is not what we are doing. The
standard of review we must apply in these cases has been
endlessly repeated: an immigration judge’s “credibility
findings are entitled to highly deferential review” and
“adverse credibility findings are overturned only under
‘extraordinary circumstances.’ ” Mansour v. INS, 230 F.3d
902, 905 (7th Cir. 2000), and Oforji, 354 F.3d at 613. We
should honor these pronouncements, not merely mouth
them and then proceed to pick apart what an IJ has done.
Here, it seems to us that two related matters, which the
IJ pointed out, augur against setting aside his findings.
Ms. Apouviepseakoda traveled from Togo to America three
times, arriving first in Dallas in 2000 and again in New
York in 2001. After each of these trips—the second after a
6-month stay here which followed, she said, a terrible
beating—she returned to Togo. Was the IJ compelled to
believe that these return trips are what a person in dire
fear of persecution in Togo would do? We think not. As for
the beating, Ms. Apouviepseakoda testified that the
soldiers “hit her with their fists and batons and dragged
her along the floor” for some “30 minutes.” From her
description, one would think she was beaten to within
an inch of her life. Yet, as depicted in the photographs
taken at a hospital a day or two later, she shows nary
a scratch.
The IJ spent 6 hours in a hearing room, face to face, with
Ms. Apouviepseakoda. We have never met her. Given our
standard of review, and the matters recalled by the IJ, we
don’t believe it’s fair to say that his conclusion was so
far off base that this case must be sent back, as our
colleague argues, for “a new hearing before a different
immigration judge.”
For the foregoing reasons, Apouviepseakoda’s petition for
review of the BIA’s decision is DENIED.
No. 05-3752 21
POSNER, Circuit Judge, dissenting. The majority opin-
ion is mainly devoted to refuting the petitioner’s due
process claim and scants the more serious issue, which is
whether the immigration judge’s determination that
the petitioner lied in testifying that she was a victim of
persecution in her country of origin can be said to be
supported by substantial evidence.
Ordinarily the determination by the trier of fact that
a witness is not telling the truth is conclusive on a re-
viewing court. But there are exceptions. One is where the
trier of fact is a judge or other judicial officer, rather
than a jury (a jury gives no explanations for why it be-
lieved or disbelieved a particular witness), and gives
erroneous or illogical reasons for his determination; and
then the case must be remanded unless the witness
is unimportant or it is apparent that the trier of fact
would have reached the same conclusion on rational
grounds. We have repeatedly invoked this principle in
asylum cases. Ayi v. Gonzales, 460 F.3d 876, 883 (7th Cir.
2006) (another Togo asylum case); Pramatarov v. Gonzales,
454 F.3d 764, 765-66 (7th Cir. 2006); Oforji v. Ashcroft,
354 F.3d 609, 613 (7th Cir. 2003); see also Allord v.
Barnhart, 455 F.3d 818, 821-22 (7th Cir. 2006); Ahmad v.
INS, 163 F.3d 457, 461 (7th Cir. 1999). It is consistent
with more general formulations of the standard of re-
view of credibility determinations, such as that the
determination cannot be overturned unless “the record
compels a contrary conclusion.” Bradvica v. INS, 128 F.3d
1009, 1012 (7th Cir. 1997). The majority opinion quotes
Oforji v. Ashcroft, supra, 354 F.3d at 613, for the prop-
osition that “adverse credibility findings are overturned
only under ‘extraordinary circumstances,’ ” but ignores our
further statement that credibility determinations “must
be supported by ‘specific, cogent reasons.’ In addition,
these reasons must ‘bear a legitimate nexus to the find-
ing’ ” Id. A similar qualification in Mansour v. INS, 230
22 No. 05-3752
F.3d 902, 906 (7th Cir. 2000), is omitted from the major-
ity’s quotation from that opinion as well. The majority
accuses me of merely “mouth[ing]” the standard of re-
view and proceeding to “pick apart” the immigration’s
judge analysis. The majority’s response is to oversimplify
the standard of review by selective quotation and then
to perform reconstructive surgery on that analysis.
In a close case, when the immigration judge fails to
ground his finding on plausible observations of demeanor,
plausible inferences from inconsistencies in the witness’s
testimony, or other clues to dishonest or mistaken testi-
mony, we have to overturn his determination. Review of
credibility determinations is deferential, but deferential
review is not supposed to mean rubber stamping. The
Immigration Court is not small-claims court; mistaken
rejection of an asylum claim can doom the claimant,
literally. And as we know from another recent asylum
case involving Togo, Kantoni v. Gonzales, 461 F.3d 894,
896-97 (7th Cir. 2006), the testimony of Apouviepseakoda,
if believed, would establish her right to asylum. See also
Ayi v. Gonzales, supra.
As is apparent from his opinion and from the transcript
of the hearing, the immigration judge, O. John Brahos,
has, once again, “doubted the applicant’s credibility on
grounds that, because of factual error, bootless specula-
tion, and errors of logic, lack a rational basis.” Pramatarov
v. Gonzales, supra, 454 F.3d at 765. We topped off another
highly critical discussion of Judge Brahos’s reasoning
by saying: “we have no idea why the IJ ruled as he did.”
Gomes v. Gonzales, No. 03-3020, 2007 WL 63973, at *6
(7th Cir. Jan. 11, 2007). As for the opinion of the Board
of Immigration Appeals, its gist, so far as bears on the
issue of credibility, is the following unhelpful sentence:
“While no single concern would lead us to conclude that
the [asylum applicant’s] story is untrue, the constella-
tion of problems described by the Immigration Judge lead
No. 05-3752 23
us to agree that the [asylum applicant] has not met her
burden of proof to establish eligibility for relief from
removal.” So all that we have to go on in assessing
Apouviepseakoda’s claim is Judge Brahos’s opinion.
The opinion declares her testimony “vague and inconsis-
tent with the documentary evidence and it appears exag-
gerated” and riven with “inconsistencies and implausi-
bilities.” She had testified that the dictator of Togo had
imprisoned the mayor of her town after discovering that
he was supporting the opposition to the dictator, and that
because her husband supported the mayor he became a
target of the dictator as well. Judge Brahos found this
statement “unconvincing and vague,” but did not say
why beyond remarking that “although [she] was allegedly
a member of the UFC (the opposition), she does not
allege that she was targeted for this membership but
rather for her husband’s support of the Mayor.” Opposing
a dictator is often bad news for the opponent’s family. But
it would make no difference to the validity of her claim
for asylum whether she had been persecuted on account
of her own politics or those of her spouse; it would still
be politically motivated persecution. E.g., Toure v. Attor-
ney General, 443 F.3d 310, 320-21 (3d Cir. 2006); de
Belbruno v. Ashcroft, 362 F.3d 272, 284-85 (4th Cir. 2004);
Khem v. Ashcroft, 342 F.3d 51, 53-54 (1st Cir. 2003); Navas
v. INS, 217 F.3d 646, 659 n. 18 (9th Cir. 2000). This is
not an esoteric point, but Judge Brahos overlooked it.
The petitioner testified that soldiers had ransacked
her house and taken many photographs and other docu-
ments but not her passport or her children’s passports.
The judge found this testimony unconvincing because “the
only explanation provided by [her] is that the soldiers
must not have found the passports.” That was specula-
tion, of course; but how could she have offered any other
explanation? She could not know the soldiers’ motives
or methods. And the immigration judge, noting corrobo-
24 No. 05-3752
ration for the ransacking, did not find that it had not
occurred. Of course the fact that the soldiers did not take
her documents could be evidence that she was not an
object of the dictator’s wrath after all. But that was not
the inference that the immigration judge drew; rather he
thought that her failure to nail down the reason for the
soldiers’ not having taken her documents showed she
was lying. That makes no sense.
The judge came down particularly hard on the peti-
tioner’s testimony that she had been hospitalized for
injuries that she had sustained when beaten by other
soldiers. He pointed out that the hospital certificate that
she tendered as evidence of her hospitalization is dated
September 18 but states that the petitioner was seen “in
consultation from September 18 to September 28.” That is
a genuine anomaly, though similar mistakes can be found
in medical records even in the United States, and the
judge’s principal concerns lay elsewhere. The doctor who
had signed the hospital certificate is identified on it as
practicing in the fields of “Gynecology-Obstetrics-General
Medicine.” The judge said that “when questioned why [the
petitioner] was treated by a gynecologist for wounds
and bruises to her body, [she] testified that she was not
treated by a gynecologist. Her testimony, thus, is inconsis-
tent with the documentary evidence she submitted to
support her claim.” (She testified that she had been
treated at the hospital by women and men but not by a
gynecologist.) The fact that a gynecologist signed the
hospital certificate doesn’t mean that he treated her, and
though there is a prescription in the record that is
stamped with his name, it is not signed. Moreover, “gyne-
cologist” is not a complete description of him because it
describes him as practicing general medicine as well as
gynecology, and the petitioner may have been thinking
of the former when she testified that she had not been
No. 05-3752 25
treated by a gynecologist. That would be consistent
with the diagnosis noted on the certificate of “chronic
insomnia, psychosis, and total [illegible] cerebral edema,”
none of which are gynecological conditions. It would not
be surprising to discover that in a country as poor as Togo
the medical profession is less specialized than it is in the
United States.
The immigration judge questioned the diagnosis of
“cerebral edema” because the petitioner “was wearing a
scarf covering her head in the photographs [taken in
the hospital, and submitted by her to the court] making
it impossible to determine whether or not she had any
head injuries.” The implication is that if she really had
had cerebral edema, she would have exhibited it by bar-
ing her head. But there is no basis for thinking that
the purpose of the photographs was to create evidence for a
future asylum (or other) proceeding. Moreover, the other
women in the photograph are also wearing head-
dresses, which is common in Togo (see, e.g., www.
togoaid.com/ipw-web/b2/index.php?cat=1, visited Jan. 8,
2007), though these women had nothing to hide. Further-
more, cerebral edema is a swelling of the brain, not of
the head. There is no reason to think that if the petitioner
had had cerebral edema there would have been a visible
injury. And, by the way, psychosis and insomnia are
among the symptoms of cerebral edema.
The majority opinion does a variation on the immigra-
tion judge’s theme by pointing out that in the photo-
graphs Apouviepseakoda “shows nary a scratch.” Well, of
course; she is fully clothed in the photographs.
The immigration judge emphasized that the doctor
who signed the certificate is said on it to have seen
Apouviepseakoda “in consultation” rather than to have
“treated” her. The emphasis is odd, given that the
judge disbelieved her testimony that she had not been
26 No. 05-3752
treated by the doctor. He seems to have thought both
that consultation meant treatment and that the refer-
ence to consultation meant she hadn’t been treated at
all and therefore must not have been injured. That is a
great muddle, but in any event one would have to know a
good deal about the medical profession of Togo to at-
tach any weight to the distinction between consultation
and treatment. Speculating that the petitioner’s injuries
may have been due to an automobile accident (suggested
by no one, and inconsistent with the judge’s belief that
she had not been injured), the judge said that “some
injuries are a result of a complication because of pre-
existing condition and the treating doctor would have that
information in his report and because you submitted to us
a consulting doctor’s report I have to give it very little
weight.”
He seems to have formed the opinion—on what basis he
does not say—that the medical protocols of Togo are
identical to those of the United States. Reading his opin-
ion you might think the petitioner had been hospitalized
in Truro rather than in Togo. Besides being a brutal
dictatorship, Togo has a per capita GDP of $1,600 (2005)
which is only 4 percent of the per capita GDP of the United
States. Pertinent here is our reminder in Banks v. Gonza-
les, 453 F.3d 449, 453 (7th Cir. 2006), that “an IJ is not
an expert on conditions in any given country, and a priori
views about how authoritarian regimes conduct them-
selves are no substitute for evidence—a point that we have
made repeatedly, but which has yet to sink in.” See also
Kantoni v. Gonzales, supra, 461 F.3d at 897.
Judge Brahos expressed great concern that two of the
hospital photographs submitted by the petitioner are
stamped “03 4 16,” which he interpreted to mean that
they had been taken in 2003, whereas the hospitaliza-
tion was in 2001. He overlooked the petitioner’s claim
that the photographs had been submitted with her asylum
No. 05-3752 27
application in 2002, making it physically impossible that
they had been taken in 2003. As the majority opinion
points out, the situation with the photographs is “not
exactly clear,” in part it seems because the Department of
Homeland Security failed to submit legible copies of the
photos. But the immigration judge did not question the
petitioner’s claim to have submitted the photos in 2002, so
that, as the record stands, whatever “03 4 16” signifies, it
is not the date on which the photographs were taken. The
judge also speculated without any basis in the record
that the photographs had been taken in the United States.
Had they been taken in the United States, they would
be more likely to have a correct date on them.
The immigration judge thought it incredible that the
petitioner would have returned to Togo, as she did, for a
visit after fleeing it. But she testified that she and her
husband (who had fled to Ghana) had been members of
the Togo bourgeoisie, and that she had money there (as
well as her mother there, with whom she stayed on her
visit), and was also looking for her husband. The judge
thought that since the husband was in Ghana, his wife
would not have sought his whereabouts in Togo. Yet
he credited testimony that Ghana has been arresting
enemies of Togo’s dictator and sending them back to
Togo for trial, and this was consistent with the peti-
tioner’s testimony that her husband was hiding in Ghana.
It could also explain why she was inquiring about him in
Togo rather than in Ghana. Family or friends of the couple
in Togo might have information about where he was
hiding.
The judge thought the petitioner wouldn’t have dared
return to Togo for a visit had she really feared persecu-
tion. But she testified that she’d been able to enter and
leave the country without incident because she had had
the protection of an officer, who escorted her through
customs. That is entirely plausible in as disordered a
28 No. 05-3752
polity as Togo. The judge also thought it incredible that
the petitioner could have been a member of the opposi-
tion party since 1995, as she testified, without having
been arrested. But it is uncontradicted that she and her
husband had the protection of the mayor of their town
before the mayor’s fall from grace.
In pointing out these things, I am not being picky. I am
not guilty of lack of charity in interpretation. The gaps
in logic in Judge Brahos’s opinion are yawning chasms.
We can gain further insight into Judge Brahos’s rea-
soning process by considering the extraordinary state-
ments by him that pepper the transcript of the hearing,
beginning with the extreme displeasure he displayed at the
fact that the petitioner testified in a soft voice. He said:
“[Y]ou have to speak up so I can hear your voice. Today
passiveness and demureness is not the regiment [sic] of
the day. Today aggressiveness and loudness is [sic] the
regiment [sic] of the day and you can even scream at the
Court. I will not take offense to that, but I want to hear
your voice. So, if you force me repeatedly to ask you to
raise your voice I will not be pleased. And also might
indicate the posture of your case as well. If you’re really
strong in your convictions you’ll express it in a strong
manner. If your answers are weak the Court may be-
lieve that you’re [sic] claim is also weak so conduct your-
self accordingly.” I have never before heard it suggested
that truthfulness can be inferred from a witness’s decibel
level. Nor have I ever heard of a judicial officer’s inviting
a witness to scream at him. What makes Judge Brahos’s
tirade weirder still is that the petitioner was testifying
in French (the official language of Togo), not English, and
the interpreter did not complain that he couldn’t hear
her. So even if she’d been completely inaudible to the
judge, it could have made no rational difference to him.
The fact that she was testifying through an interpreter
has a significance that my colleagues do not appreciate
No. 05-3752 29
when they say that “The IJ spent 6 hours in a hearing
room, face to face, with Ms. Apouviepseakoda. We have
never met her.” I take this to be an allusion to the com-
mon though not necessarily correct belief that being
present when a witness testifies greatly assists a judge
or juror in determining whether the witness is telling
the truth. Even if so in general, it cannot be so when the
witness is a foreigner testifying through an interpreter,
especially if the judge cannot even hear the foreigner, but
only the interpreter. Reading the facial expressions or
body language of a foreigner for signs of lying is not a
skill that either we or Judge Brahos possess.
The judge was skeptical about the petitioner’s claim
that her husband owned a radio station in Togo. She
tendered a photo, but he responded that “I have photo-
graphs also in high school where I took pictures with a
radio transmitter there. Does that mean that that is an
operating business because you have a photograph?” He
also asked her whether the record contained anything
“from the listeners to verify that they heard the station.”
He was also skeptical about her testimony that her
husband owned a garbage-collection business. He was
troubled that she “has no specific items from employees
who verified that they worked for your husband”—does
Judge Brahos really expect garbage men in Togo to pro-
vide affidavits concerning their former employer, now an
enemy of the state? The judge thought it remarkable that
the petitioner did not remember the years in which her
husband owned the garbage-collection business, saying: “A
spouse does not know what her husband is doing when he’s
working, is that what you wish me to believe, ma’am?” To
which she sensibly answered: “Yes. In Africa it is very
difficult for a woman to be involved in her husband’s
business.” He persisted: “So, when he goes to work in the
morning you don’t know where he’s going, is that what
you’re saying? [It’s not what she had testified.] He doesn’t
30 No. 05-3752
tell you [?]” She answered: “He tells me that he goes to
work but I don’t follow him to see where he, he’s would
go.” To which Judge Brahos responded: “That’s amazing.”
He then instructed the interpreter: “You want to tell her
that’s amazing. You want to tell her.”
Enough about Judge Brahos’s appalling handling of this
serious case. The failure is more an institutional than a
personal one. One cannot but sympathize with the diffi-
culty under which the immigration judges labor quite
apart from their horrendous workloads, which Congress
and the Justice Department have done nothing to try to
alleviate. Rarely, at least in the cases that reach this
court, have the parties presented to the Immigration Court
evidence of high probative value either for or against the
claim for asylum. Most asylum applicants come from
distant, poor, and poorly governed countries about which
Americans, including the immigration judges, who are
not selected for their knowledge of foreign countries, know
nothing—countries in which often it is impossible to find
witnesses or obtain accurate documentary evidence
supporting or opposing the applicant’s case. Rarely is there
much evidence beyond the applicant’s testimony. She
has the burden of proof, and the immigration judge is
not required to accept her testimony just because it is
not refuted. He should not. He should probe for contra-
dictions, and if he finds serious ones he can refuse to
believe her testimony and we will uphold his ruling. What
he cannot be permitted to do is ignore the rules of logic,
as Judge Brahos did in this case when he declared that
to be seen by a doctor in “consultation” both is and is not
to be “treated” by the doctor; or to fabricate contradic-
tions, as he did when he concluded that the hospital
photographs had been taken in 2003, though they
could not have been taken then since, so far as appears,
they had been submitted to the immigration authorities
in 2002; or to assume, as the judge did throughout his
No. 05-3752 31
opinion, that a West African dictatorship is in all mate-
rial respects just like the United States. The immigra-
tion judge’s opinion is pervaded by gross errors of fact and
logic, and read in light of the hearing transcript is an
embarrassment to American justice.
It may be true, as the majority opinion suggests in
footnote 2, that the conditions under which the immigra-
tion judges labor are such that these judges cannot be
expected to make “competent findings of fact.” But the
majority is wrong to think that therefore a reviewing
court should uphold immigration judges’ incompetent
findings of fact. For then an agency could insulate its
decisions from judicial review simply by understaffing.
The petitioner is entitled to a new hearing before a
different immigration judge.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-2-07