Adekpe, Mensah v. Gonzales, Alberto ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3951
MENSAH KOFFI ADEKPE
Petitioner,
v.
ALBERTO R. GONZALES
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A95 397 771
____________
ARGUED NOVEMBER 8, 2006—DECIDED MARCH 14, 2007
____________
Before CUDAHY, KANNE, and SYKES, Circuit Judges.
CUDAHY, Circuit Judge. Mensah Koffi Adekpe petitions
for review of a final order of the Board of Immigration
Appeals requiring that he be removed to Togo. He argues
that the Board, adopting the findings of the Immigration
Judge, improperly disbelieved his story of political perse-
cution at the hands of the Togolese government and failed
to adequately discuss evidence corroborating his story.
We grant the petition and remand the case to the Board.
Adekpe is a citizen of Togo. All agree that Togo is not a
good place in which to hold political views adverse to those
of the government; as Adekpe’s expert witness, anthropolo-
gist Dr. Dana Farnham, affirmed, the Togolese govern-
2 No. 05-3951
ment “is notorious for its persecution of members of
political opposition parties.” (We have already heard two
appeals of purported Togolese political refugees in the
past year. See Kantoni v. Gonzales, 461 F.3d 894 (7th
Cir. 2006); Ayi v. Gonzales, 460 F.3d 876 (7th Cir. 2006).)
President Gnassingbe Eyadéma seized power in a military
coup in 1967 and continued to rule the country until June
of 2005, maintaining effective control over all security
forces and using them to suppress dissent. The 2002 State
Department Country Report for Togo says that this
often involves “serious human rights abuses” (R. at 353),
and Farnham confirms that it is common for opposition
activists to be “detained, tortured, and even killed” (R. at
345). The record is filled with reports of political killings.
While Eyadéma has at times made gestures towards
permitting democratic government, they remain only ges-
tures. Power passed to Eyadéma’s son Faure Gnassingbe
in 2005, but no one contends that government policy has
changed.
There is no doubt, then, that many Togolese political
activists face persecution for their beliefs. What is in
dispute is whether Adekpe is one of them. He entered the
United States in August 2001 on a visa that expired on
February 18, 2002; he applied for asylum on February 19,
2002. After an interview with a DHS Asylum Officer on
March 4, 2004, his application was denied and the DHS
commenced removal proceedings against him. Adekpe
conceded removability but renewed his application for
asylum and added requests for withholding of removal
and Convention Against Torture relief.
At his removal hearing, Adekpe testified to a long tale
structured around alternating periods of political activism
and hiding from subsequent government retribution. His
story begins in the city of Lome with his education at the
University of Lome’s school of management in the late
1980s and early 1990s. He and others founded a student
No. 05-3951 3
group called MELD (in French, an acronym for “Student
Movement for Liberty and Democracy”), members of
which met secretly to carry on discussion and write poetry
and tracts about what they thought were various prob-
lems facing Togo, including discrimination against stu-
dents from the south like Adekpe. (The Togolese govern-
ment exploits an ethnic division between the country’s
northern half, mostly of Kabye ethnicity, and its southern
half, mostly Ewe. President Eyadéma and most of his
supporters are Kabye; Adekpe is Ewe.)
MELD was exposed in August 1990 while trying to
recruit additional students. One of its members informed
the government of its activities. The Gendarmerie, a
branch of the Togolese military devoted to internal secu-
rity, invaded a MELD meeting on the University campus
and arrested everyone there. They were taken to a Gendar-
merie office, a sort of military camp. While the informer
was quickly released, the others were held for two weeks.
They all had to stay in a single small room, except for
when they were taken one at a time into a different room
and interrogated. The interrogators handcuffed the
students, shocked them with electricity, and beat them
with belts, sticks and boots. Adekpe testified that on the
ninth day of his detention he was tied to a table, beaten
and shocked; when he tried to fight back afterwards, he
fell down from exhaustion and broke four of his front
teeth. He didn’t receive professional medical attention
until after the fourteenth day, when one of Adekpe’s
professors brought the situation to the attention of an
international human rights organization and the MELD
students were released.
During roughly the same period in which he was par-
ticipating in MELD, Adekpe testified, he was also develop-
ing a relationship with a Secretary General of the Mayor’s
Office in Lome (a sort of assistant to the Mayor). Adekpe
and the Secretary General lived in the same neighborhood,
4 No. 05-3951
and the Secretary General’s request for help rearranging
his house one day led to frequent social visits with Adekpe.
Despite the Secretary General’s position in the govern-
ment, which required loyalty to Eyadéma, these talks
eventually turned to politics and it turned out that the
Secretary General was in fact an antigovernment sympa-
thizer. His friendship would later turn out to be instru-
mental in helping Adekpe to avoid apprehension by the
military.
MELD disbanded in 1991 when President Eyadéma
permitted the creation of opposition political parties.
Adekpe joined the Union of Forces of Change (UFC), a
large political party that supported democratic reforms,
and spent 1991 and 1992 going from town to town to help
politically organize young people for demonstrations.
(Adekpe’s UFC membership card is in the record.) But in
1992 the opposition’s activity overwhelmed the govern-
ment’s tolerance for political dissent. The government tried
to assassinate Gilchrist Olympio, the head of the UFC, and
the military began to break up demonstrations, track
their organizers and kidnap participants identifiable in
news videos.
Adekpe went into hiding until June of 1993, when
French and German dignitaries came to meet with Presi-
dent Eyadéma about a possible restoration of European
financial aid. The UFC mobilized for anti-government
demonstrations to greet them. On the day of the visit,
Adekpe participated in a march that was broken up by
the military. Beaten by soldiers, Adekpe fled and stayed
hidden when he learned that the government was hunt-
ing him as one of the organizers of the march.
In 1994, Adekpe’s friend, the Secretary General, in-
formed him that he had been placed on the “black list” of
government opponents. Adekpe testified that the list is “a
death warrant” and that “as soon as [people on the list] are
No. 05-3951 5
taken outside, the military can kill them easily.” (R. 194.)
Adekpe also met his wife in that year and married her
in 1995. He began to hide out in the house of his father-in-
law, one Captain Azote. Azote was a member of President
Eyadéma’s Rally of the Togolese People party (RPT) with
a high-ranking position in the Togolese military, but was
also, like the Secretary General, an opposition sympa-
thizer.
Adekpe testified that his marriage to Azote’s daughter
led to Azote’s death. President Eyadéma himself made a
telephone call to Azote in which he inquired about the
political affiliation of Azote, his wife and his daughter
(though Eyadéma did not mention Adekpe). Azote re-
sponded that “in his house, all were free to do as they
wanted.” (R. 196.) After this conversation, Azote began to
fear that forces were organizing against him within the
military. On January 29, 1996, suffering from nervous
insomnia, he took a walk at about 3:00 to 4:00 in the
morning. Soldiers stopped him on the street, took his
identification and sidearm, let him go and then shot him
in the back.
The Secretary General warned Adekpe not to remain in
Lome, and he and his wife fled to Notse, a town about two
hours away. There they stayed with a friend of the Secre-
tary General until June of 1998. Adekpe’s wife gave
birth to a daughter and the couple performed farm work
for their host.
In June of 1997 the UFC decided to participate in
upcoming European Union-financed national elections.
While trying to keep a low profile, Adekpe traveled to
several villages near Notse to mobilize voters. On election
day, June 21, 1998, Adekpe served as a UFC representa-
tive at the Notse voting office. A “representative” fills a
role something like that of an election judge in the United
States, supervising voting and tabulating the votes after
6 No. 05-3951
the polls close. As the returns began to come in, however,
the government’s temporary tolerance of the opposition
again came to an end. The polls closed at 6:00 p.m.; two
hours later elements of Eyadéma’s RPT came and told
the representatives to stop tabulating the votes. The non-
RPT representatives continued to tabulate votes anyway,
but became concerned about “suspicious movements” in
the courtyard of the school that served as the polling
place; so they signed a report on the vote totals and fled.
Rumors quickly spread that the government was kidnap-
ing members of the opposition again; so Adekpe’s host
immediately drove him and his family south to the village
of Alfao-Totche.
Adekpe hid out in Aflao-Totche. He found work as a
mathematics teacher in October of 1999, but had to quit
in May 2000. He learned from the Secretary General that
the military suspected where he was and someone
showed up at the school to ask Adekpe’s boss about him
(with his boss telling the inquirer that Adekpe had quit
weeks earlier). In 2000, the Secretary General helped to
get Adekpe a passport, which Adekpe picked up at the
Secretary General’s house in Lome. On occasion, Adekpe
crossed a border into Ghana near Aflao-Totche.
In 2001 Adekpe received a United States visa to partici-
pate in a poetry conference (having been recognized on the
basis of a poetry contest to which he had submitted poems
via the internet in Ghana). Adekpe testified that on
August 18, 2001, he “slipped through the border” to Ghana
and traveled from there to the United States. When the
DHS pointed out that there was an August 18 Ghana
entry stamp in Adekpe’s passport, Adekpe clarified that
he meant he had traveled across a relatively isolated
border station near Aflao-Totche rather than across a
more heavily-traveled border where he would be more
likely to be stopped for being on the “black list.”
No. 05-3951 7
Since leaving Togo, Adekpe has received communica-
tions from his family, both letters (translations of which
are in the record) and telephone calls occasionally placed
to him by his wife from Ghana. These continue to tell the
story of government harassment. Adekpe’s wife reported
that in late 2001 people kept coming to her house to ask
where Adekpe was, and, when she admitted that he was
in the United States, the date he was expected back. On
April 3, 2002, in an incident also mentioned in a letter
from Adekpe’s brother, a stranger showed up at Adekpe’s
daughter’s school, claiming to school officials to be a family
friend and attempting to take her home. Adekpe’s family
suspected he was from the military and the family fled to
live with Adekpe’s mother. Adekpe’s daughter has still
not returned to school out of fear of the military.
On cross-examination, the DHS drew attention to
conflicts between Adekpe’s hearing testimony and ac-
counts he had given in his application for asylum, in his
interview with an asylum officer (as evidenced by the
officer’s notes) and in an affidavit. Adekpe tried to ex-
plain the omission of some details from his application
and interview, in part by claiming that he didn’t know he
was supposed to be precise about the details of his story
on the application, that he thought the application was
supposed to be only a summary and that the translator
he brought to his asylum interview was not very skilled
and plainly had difficulty with the translation.
The IJ denied Adekpe’s requests for relief. She did not
believe his story, largely because of various discrepancies
between Adekpe’s testimony and earlier versions of his
account. She noted, for instance, that while Adekpe’s
testimony made it seem that his father-in-law, Captain
Azote, was killed because of his daughter’s marriage to
Adekpe, Adekpe’s asylum application indicated that
Azote was killed for being a dissident in his own right. The
application also states that Azote was shot down on
8 No. 05-3951
January 27 rather than on January 29 and during the
course of a normal morning jog rather than in the course
of an insomniac wandering. The IJ also pointed out that
Adekpe had changed his story with respect to how many
members MELD had, how many of them were arrested
and whether or not the informant member was arrested
or released.
The IJ also disbelieved Adekpe because his hearing
testimony included details omitted from his previous
versions of his story. Most significantly, prior to the
hearing, Adekpe had failed to mention his friendship
with the Secretary General of the Mayor’s Office in Lome,
although Adekpe had mentioned that a “friend” helped him
to get his passport. Adekpe explained that he had not
mentioned the Secretary General in his asylum applica-
tion because he believed it was only a summary and
because he was afraid that by mentioning the Secretary
General’s name he would put his life in danger. His
application also failed to mention, among other things, his
involvement in the 1998 elections, the electric shocks
during the MELD detention and some of the times
when he went into hiding.
Finding that Adekpe’s testimony was not credible, the IJ
turned to the evidence offered to corroborate it. She
acknowledged that Adekpe had provided a copy of his
UFC membership card and letters from his family, but
nonetheless found that these did not help Adekpe because
they did not “specifically corroborate” his story, that is,
because they did not “corroborate the incidents that
occurred specifically to him”:
The letter from the Respondent’s mother-in-law does
not corroborate that her husband was killed. The
letters from the Respondent’s mother and brother do
not corroborate that the Respondent was detained
for 14 days and beaten in 1990. The letters from his
No. 05-3951 9
wife do not corroborate the Respondent’s involve-
ment in the UFC or his participation in the 1998
election as a UFC representative. As such the Respon-
dent failed to corroborate the specific elements of his
asylum claim. (App. at 56.)
Because the IJ disbelieved Adekpe’s story, she held that
he was not eligible for any of the requested relief from
removal. Adekpe appealed to the BIA, which affirmed
without opinion, adopting the IJ’s opinion as its final
determination per 8 C.F.R. § 1003.1(e)(4). Adekpe now
petitions for review, challenging the denial of all three
forms of relief.
We must affirm the IJ’s decision unless it is not sup-
ported by substantial evidence, 8 U.S.C. § 1252(b)(4)(B);
INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992), or unless
the IJ ignored probative evidence, an important possible
inference or otherwise failed to make a reasoned analysis
of the evidence before her as a whole, Apouviepseakoda v.
Gonzales, 475 F.3d 881, 890 (7th Cir. 2007); Hanaj v.
Gonzales, 446 F.3d 694, 700 (7th Cir. 2006); Iao v. Gonza-
les, 400 F.3d 530, 533 (7th Cir. 2005). To show that he
is entitled to asylum, withholding of removal or CAT
relief, Adekpe must show at a minimum that he is unable
or unwilling to return to Togo because of persecution or a
well-founded fear of persecution on account of a political
opinion, 8 U.S.C. §§ 1101(a)(42)(A) & 1158(b)(1)(A) (dis-
cussing asylum); see also 8 U.S.C. § 1231(b)(3)(A); INS v.
Stevic, 467 U.S. 407, 424-25 (1984) (holding that the
standard for withholding of removal is more demanding
than the standard for asylum), or that he would more
likely than not be tortured if returned to Togo, 8 C.F.R.
§§ 208.16(c)(2) & 208.18(b)(1). In the present case, the IJ
denied relief not because Adekpe’s alleged sufferings and
fears did not rise to the level of persecution or torture, but
because she found his story incredible. Such a finding
must be made with reference to specific, cogent reasons
10 No. 05-3951
that bear a legitimate nexus to the finding, and that go to
the heart of an applicant’s claim, rather than to a minor,
irrelevant aspect of the story. Giday v. Gonzales, 434 F.3d
543, 550 (7th Cir. 2006); Rodriguez-Galicia v. Gonzales,
422 F.3d 529, 537 (7th Cir. 2005).
In the present case, the IJ’s decision to discredit
Adekpe’s story was not based on a reasoned analysis of the
evidence as a whole. Her decision to discredit Adekpe’s
testimony was based largely on unimportant discrepancies
between it and earlier versions of his story regarding
subjects that were not very relevant to Adekpe’s alleged
reasons to fear returning to Togo. Even if her analysis of
Adekpe’s testimony were sufficiently sound, she failed to
rationally consider how letters from Adekpe’s family
describing its current situation in Togo might support
his story.
We address the discrepancies in Adekpe’s testimony
first. Inconsistencies between an alien’s hearing testi-
mony and earlier statements, and omissions from those
earlier statements, can support an adverse credibility
finding. But they can do so only where they go to the heart
of the asylum applicant’s claim, rather than when they
concern minor and relatively immaterial points in the
applicant’s testimony, Rodriguez-Galicia, 422 F.3d at 537;
Capric v. Ashcroft, 355 F.3d 1075, 1090 (7th Cir. 2004);
Uwase v. Ashcroft, 349 F.3d 1039, 1043 (7th Cir. 2003).
Further, the contradiction or omission must be substan-
tive, and not easily explained or superficial. Giday, 434
F.3d at 551-52. Even if some of the discrepancies on which
the IJ relies to support a credibility determination do
concern the heart of the alien’s claims, we must still
remand for reconsideration where the vast majority of the
reasons relied upon are immaterial. Giday, 434 F.3d at 553
(“[I]t seems unlikely that the immigration judge would
make the same credibility determination based on one
No. 05-3951 11
inconsistency rather than the four he originally noted.”);
Georgis v. Ashcroft, 328 F.3d 962, 970 (7th Cir. 2003)
(remanding where only one of the six reasons the IJ relied
upon was material), but see Korniejew v. Ashcroft, 371
F.3d 377, 386 (7th Cir. 2004) (affirming where two of
three reasons were material).
The majority of the discrepancies the IJ relied upon to
discredit Adekpe’s testimony concerned minor, immate-
rial parts of his testimony. Two discrepancies were argu-
ably important—the failure to mention the Secretary
General, a somewhat central character in Adekpe’s
story whose friendship explains why Adekpe was able to
stay ahead of the government for so long, and the contra-
diction concerning the reason for Captain Azote’s mur-
der—but the vast majority were unimportant. To begin
with, the central point of Adekpe’s testimony about his
activities with MELD, for purposes of his claims here, is
that he was detained and beaten for his political activities.
The points upon which the IJ noted discrepancies—
whether the meeting occurred on campus or “at home”
(assuming that represents a distinction for a university
student), whether the meeting had 13 or 20 participants,
what precisely happened to the informant—do not concern
this basic core. Korniejew, 371 F.3d at 383; Uwase, 349
F.3d at 1042-43. Additionally, Adekpe failed to mention
the electrical shocks on his asylum application, but we find
it doubtful that the DHS would deny asylum to the vic-
tim of a politically motivated, two-week detention filled
with deliberate, vicious beatings but grant it to a similar
applicant with additional nonlethal electrical shocks; pain
is pain, whether inflicted with or without technological
sophistication. Giday, 434 F.3d at 552. The discrepancies
regarding Captain Azote’s assassination, with the excep-
tion of those dealing with the motivation for the killing,
are similarly unimportant. If Azote was killed for his
association with Adekpe, it suggests that the government
12 No. 05-3951
would likely kill Adekpe too, if given the chance, regard-
less of whether Azote was killed on a Monday or Saturday,
walking or jogging. Kllokoqi v. Gonzales, 439 F.3d 336,
341-42 (7th Cir. 2005) (holding that minor discrepancies in
the date of an alien’s graduation from high school as
compared to the date of a beating did not justify an
adverse credibility finding). Finally, the IJ found it
unreasonable that Adekpe would omit to mention long
periods of time spent in hiding and his participation in the
1998 elections on his asylum application, but we are not
as certain. Adekpe testified that he thought the applica-
tion was a summary. The IJ’s opinion does not offer any
reason to disbelieve that testimony, and the events omit-
ted were comparatively minor. Adekpe was beaten before
he went into hiding after the foreign dignitary visit in
1993, but by and large the omitted events involve the
government trying and failing to hurt Adekpe and his
associates, rather than the government’s successes in
arresting the MELD students in 1991 and killing Captain
Azote in 1995. If Adekpe genuinely believed the applica-
tion was supposed to be a summary, those omissions
make sense. Cf. Shmyhelskyy v. Gonzales, ___ F.3d ___,
No. 06-1550, 2007 WL 475829, *7 (7th Cir. Feb. 15, 2007)
(affirming an adverse credibility determination against
an alien based on that alien’s failure to mention the most
vicious beating he received before the asylum hearing).
Because the IJ’s credibility determination relied in such
large part on unimportant and explicable discrepancies,
we must remand for reconsideration.
Second, the IJ failed to consider the obvious implica-
tions of the letters Adekpe presented from members of his
family still in Togo. Even if the IJ had properly con-
sidered Adekpe’s testimony incredible on its own, other
evidence, including these letters, could still bolster his
story. Uwase, 349 F.3d at 1041. The letters report that
after Adekpe’s departure, his wife and child faced harass-
No. 05-3951 13
ment and danger from the Togolese military. The govern-
ment points out that some portions of the letters are
ambiguous and could indicate mere economic misfortune;
for instance, Adekpe’s mother writes that “[s]ince you left,
the situation that made you leave has not ceased,” and
refers to financial difficulties. (R. 444.) But at other
points it is quite clear that the “situation” is the govern-
ment’s pursuit of Adekpe. In that same letter Adekpe’s
mother says that if Adekpe’s family does not leave Togo
“they will surely end up being arrested, never to be seen
again.” (Id.) Adekpe’s brother writes that “[t]he military
continues to harass and threaten” and that “they made
an attempt to kidnap your daughter”; he tells Adekpe that
if he does not bring his family to America, “it’s hard to
tell what will happen with the militia’s threats.” (R. 445.)
Finally, Adekpe’s wife herself informs him that he is the
cause of the trouble: “As I am writing you, people are
informing me that [they] are relentless in their efforts
to obtain information about you, your wife and your
daughter.” (R. 455.)
The IJ dismissed these letters because they failed to
mention events from Adekpe’s narrative that occurred
prior to his departure from Togo, such as his work with
MELD and the UFC or the murder of Captain Azote. It
is perhaps true that Adekpe’s story might be more plausi-
ble if the letters had confirmed details of these events.
(On the other hand, as Adekpe observes, it might be
suspicious for a letter to without solicitation recount
stories that are several years old and with which the
recipient is more familiar than the writer.)
But while the IJ was correct to conclude that the letters
did not “specifically corroborate” Adekpe’s testimony in
that way, she ignored a way in which the letters might
make Adekpe’s story more plausible without specifically
corroborating its details: by revealing that the situation
in Togo after his departure is consistent with the situation
14 No. 05-3951
he says existed prior to his departure. See Balogun v.
Ashcroft, 374 F.3d 492, 507 (7th Cir. 2004) (holding that a
letter from an alien’s mother stating that elders were
asking when the alien would return to undergo female
genital mutilation corroborated the alien’s story that
she had been pressured to undergo female genital mutila-
tion). It is undisputed that Togo frequently persecutes
important members of opposition parties like the UFC, and
(despite the government’s observation that no one has
translated Adekpe’s UFC membership card from French to
English) no one has seriously disputed that Adekpe is a
card-carrying member of the UFC. True, Togo does not
persecute every member of an opposition political party;
many Togolese can become rank-and-file members of
opposition parties without facing severe repercussions.
Eusebio v. Ashcroft, 361 F.3d 1088, 1092 (8th Cir. 2004).
But Adekpe does not claim he is a rank-and-file member
of the UFC; he claims that he is a relatively important
member who has organized demonstrations and served
as a party official during an election. Essential to the
credibility of Adekpe’s claim of persecution, therefore, is
the credibility of his claim that he is a sufficiently impor-
tant member of the UFC to warrant the government’s
attentions. Evidence that the Togolese government pur-
sued Adekpe and threatened his family after he left Togo
suggests that he is sufficiently important. No one has
suggested another reason why the government might
chase Adekpe, and the record confirms that the current
government inquiries are consistent with his having
been persecuted; Dr. Farnham affirmed that “[r]efugees
who fled Togo due to fear of reprisal for their political
activities have been particularly targeted by the Togolese
security forces upon their return.” (R. 345.)
By letting her analysis of the letters from Adekpe’s
family rest with a determination that they did not “specifi-
cally corroborate” his testimony, the IJ acted as though
No. 05-3951 15
there were two distinct stories: Adekpe’s tale, covering the
years 1990 to 2001 and alleging various government
punishments and threats caused by Adekpe’s political
opinions, and Adekpe’s family’s tale, covering the years
after 2001 and alleging that the government is harassing
Adekpe’s wife about his whereabouts, has tried to kidnap
Adekpe’s daughter and has driven his family into hid-
ing—all for reasons unknown. In so doing, the IJ failed to
consider the evidence as it most plausibly fits together as
a whole. Cecaj v. Gonzales, 440 F.3d 897, 899 (7th Cir.
2006). If the government has continued to harass Adekpe’s
family and has sought his whereabouts after 2001, it is
probably because of his political work with the UFC. If
the IJ credits the letters, they should make Adekpe’s
claims that the government harassed, threatened, detained
and beat him for his work with MELD and UFC prior to
2001 much more plausible.
Because the IJ failed to rationally consider the evidence
as a whole, we grant Adekpe’s petition for review and
remand the case to the BIA. On remand, the IJ must
consider the letters, evaluate their credibility and evalu-
ate Adekpe’s story in light of the evidence as a whole,
giving consideration to the possible inferences described
above. The IJ must also confine its consideration of the
contradictions and omissions in various versions of
Adekpe’s story to those concerning facts central to his
claim.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-14-07