Diallo, Mamadou T. v. Gonzales, Alberto ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1123
MAMADOU T. DIALLO,
Petitioner,
v.
ALBERTO R. GONZALESŒ, Attorney
General of the United States,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A95 588 624.
____________
ARGUED DECEMBER 14, 2005—DECIDED MARCH 9, 2006
____________
Before RIPPLE, EVANS, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Mamadou T. Diallo, a native
and citizen of Guinea, petitions for review of an order of the
Board of Immigration Appeals affirming the Immigration
Judge’s denial of his application for asylum, withholding of
removal, and relief under the Convention Against Torture.
Since the IJ improperly required Diallo to present corrobo-
rating evidence, we vacate the decision of the BIA.
Œ
Pursuant to Federal Rule of Civil Procedure 43(c)(2), we
have substituted the current Attorney General of the United
States, Alberto R. Gonzales, for his predecessor as the named
respondent.
2 No. 05-1123
Diallo arrived in the United States in late 2001 and
applied for asylum in July 2002 on the basis of his polit-
ical opinion. He claimed that he was a member of Rally
of the Guinean People (RPG), a political party that op-
poses the regime of Guinea’s current leader, President
Lansana Conte. Diallo says that he was arrested and
imprisoned for sixteen months in December 1998 after
attending a large rally protesting the arrest of Alpha Conde,
RPG’s leader. He says that, while he was in prison, he was
pressured to sign a statement implicating Alpha Conde in
illegal activities, and, when he refused, he was tied up by
the wrists and beaten. He says that guards beat him almost
every day with batons. Diallo further alleges that there
were fifteen people in his prison cell and that the cell was
unsanitary, lacking a bathroom. According to him, during
the first six months of his sixteen-month imprisonment, he
was not allowed out of his cell except to go to court. Finally,
he says that he was given food and water only once a day
and that two of the people he was imprisoned with died.
On his release, Diallo was forced to sign a statement
agreeing not to take part in any more political activities. He
continued to participate in political activities after his
release anyway, and in October 2001 he participated in a
rally protesting a referendum that would allow President
Lansana Conte to serve an unlimited number of terms.
Diallo says that the police wanted to arrest him for his
participation in this rally, and so he was forced to flee the
country.
The IJ found that Diallo’s testimony was “general” and
“meager” and that Diallo therefore needed to provide
corroborating evidence. The IJ decided that Diallo had
failed to corroborate his claim in several respects. In
particular, he decided that, if the 2001 protest rally was
as large as Diallo claimed, Diallo should have been able
to provide some “proof of the demonstration other than
his general testimony.” The IJ also decided that Diallo
No. 05-1123 3
should have been able to provide medical records to support
his claim that he was injured while imprisoned, evidence
from RPG of his political activities and imprisonment, or
affidavits from his family in Guinea to “verify his claim.”
Finally, the IJ discounted a summons and arrest warrant
Diallo presented because, in the IJ’s opinion, these docu-
ments contained French spelling and grammatical errors
and therefore could not have been prepared by “a judicial
officer . . . who would have more than an elementary
education . . . .” The BIA summarily affirmed the IJ’s
decision.
Diallo contends that the BIA’s decision cannot stand
because he did in fact testify consistently and credibly.
Because the BIA summarily affirmed, we review the
decision of the IJ. Tabaku v. Gonzales, 425 F.3d 417, 421
(7th Cir. 2005). We have held that the asylum claim of
a credible applicant cannot be denied solely because
the applicant failed to submit corroborating evidence.
Dawoud v. Gonzales, 424 F.3d 608, 612 (7th Cir. 2005);1 see
also 8 C.F.R. § 208.13(a). Rather, an IJ who denies an
asylum claim for lack of corroboration must first make an
express credibility finding. Gontcharova v. Ashcroft, 384
F.3d 873, 877 (7th Cir. 2004). The IJ must also explain why
it is reasonable to expect corroboration and explain why the
applicant’s reason for not supplying corroboration is
inadequate. Id.The IJ in this case did not make an express credibility
finding, and the findings he did make about Diallo’s
1
The REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231,
signed into law on May 11, 2005, allows an IJ to require a credible
applicant to provide corroborating evidence in cer-
tain circumstances, id. § 101(a)(3)(B)(ii); see Dawoud, 424 F.3d
at 613. However, this act does not apply to Diallo because he
filed his asylum application before May 11, 2005. Pub. L. No. 109-
13 § 101(h)(2); see Dawoud, 424 F.3d at 613.
4 No. 05-1123
evidence are not supported by “specific, cogent reasons.”
Ssali v. Gonzales, 424 F.3d 556, 561-62 (7th Cir. 2005)
(internal citation and quotation marks omitted). The IJ said
that Diallo’s testimony was “meager” and “general,” pre-
sumably meaning that it was not detailed enough to
be believable. However, a “passing reference implying
doubt” about an applicant’s credibility is not an express
credibility finding. See Nakibuka v. Gonzales, 421 F.3d 473,
478-79 (7th Cir. 2005) (IJ’s finding that applicant’s testi-
mony was “vague and confusing” not an adverse credibility
determination). Furthermore, even if we could infer an
adverse credibility finding from the IJ’s “meager” and
“general” language, the IJ never explained why he thought
Diallo’s testimony lacked detail.
The IJ also never explained why it was reasonable
to expect Diallo to provide corroborating evidence from RPG
of his political activities and imprisonment, or affidavits
from his family members to “verify his claim.” Diallo
testified that he had not been in contact with his family
members since leaving Guinea in 2001. In addition, the IJ
did not explain why he believed that the RPG, an opposition
political party in a country where such parties’ activities are
restricted, would have been able to provide Diallo with the
information the IJ wanted. See Hor v. Gonzales, 421 F.3d
497, 501 (7th Cir. 2005) (not necessarily reasonable to
expect Algerian applicant’s co-workers to submit affidavits
describing attack by terrorist organization on the applicant
since co-workers might fear the terrorist organization).
Although the IJ attempted to explain why it was reason-
able to expect Diallo to corroborate the 2001 rally, his
explanation is not convincing. He implies that, given the
size of the rally and the existence of opposition newspapers
in Guinea, the rally would have received some press
coverage. However, it is not evident that the opposition
press would always be able to cover a rally organized by
opposition political parties in a country where political
No. 05-1123 5
opposition to the government is suppressed. See id. at 501(finding it not obvious that Algeria’s military dictatorship
would have allowed newspaper articles about terrorist
attacks).
Finally, Diallo did attempt to submit corroborating
evidence in the form of a summons and arrest warrant, and
we are troubled by the IJ’s rejection of this evidence. The IJ
believed that these documents were suspect because they
contained French grammatical and spelling errors. He also
pointed out that the summons failed to explain why Diallo
was required to appear, and the arrest warrant failed to
indicate the specific law Diallo was accused of violating. We
do not think that these are cogent reasons for questioning
the credibility of Diallo’s documents. Nowhere in his
decision does the IJ explain why he is qualified to interpret
French documents. Furthermore, even if we were confident
that the IJ accurately identified errors in these documents,
the IJ’s finding that Guinean “judicial officers” would not
make spelling and grammatical mistakes is purely specula-
tive, as are his findings that the summons would necessar-
ily explain why Diallo was required to appear and the
arrest warrant would include a citation to a specific law. See
Tabaku, 403 F.3d at 423 (IJ’s speculation not a proper basis
for an adverse credibility finding); Huang v. Gonzales, 403
F.3d 945, 949-50 (7th Cir. 2005) (same). Certainly even
educated professionals have been known to make spelling
and grammatical mistakes from time to time. In any case,
the IJ never explains why he thinks the summons and
arrest warrant were actually written up by a “judicial
officer” as opposed to an assistant or a secretary who might
not have as much training. As for the lack of specificity in
the arrest warrant and summons, the background materials
on Guinea in the record indicate that the country is essen-
tially a dictatorship. Therefore it is not clear that the
authorities would always tell individuals under arrest the
exact code section they were accused of violating or explain
6 No. 05-1123
to individuals in advance why they were being sought for
questioning.
Since the IJ did not make an adverse credibility find-
ing and did not adequately explain his reasons for requiring
corroborating evidence, we VACATE the order of the BIA and
REMAND for proceedings consistent with this opinion.
Petitioner Diallo may recover his costs in this court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-9-06