Sankoh, Saidu v. Mukasey, Michael B. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2369
SAIDU SANKOH,
Petitioner,
v.
MICHAEL B. MUKASEY, Attorney
General of the United States,
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A76-645-986
____________
ARGUED APRIL 14, 2008—DECIDED AUGUST 13, 2008
____________
Before FLAUM, EVANS, and TINDER, Circuit Judges.
FLAUM, Circuit Judge. Saidu Sankoh is a native of Sierra
Leone seeking asylum, withholding of removal, and relief
under the Convention Against Torture. An immigration
judge denied his applications and ordered him removed.
The Board of Immigration Appeals concurred in the
immigration judge’s conclusion and dismissed Sankoh’s
appeal. Sankoh then moved to this Court, challenging
the agency’s decision under several theories. Finding
no error, we affirm.
2 No. 07-2369
I. Background
Saidu Sankoh is a Sierra Leonean national who arrived
in the United States in 1996. When his visitor’s visa ex-
pired in early 1997, the INS issued him a notice to appear
charging him with being removable under 8 U.S.C.
§ 1227(a)(1)(B). After a number of extensions not relevant
here, his removal proceedings finally began in 2005. There,
Sankoh conceded his removability and requested relief in
the form of withholding of removal, asylum, and protec-
tion under Article 3 of the Convention Against Torture. The
immigration judge conducted two hearings for these
claims in January and June 2005 during which Sankoh
testified and submitted a number of documents to sub-
stantiate his requests for relief. The court’s inquiry
centered on Sankoh’s experiences prior to leaving Sierra
Leone and what treatment he could expect should he
return.
Much of the evidence came from Sankoh’s testimony. His
story was one charted by the political currents of Sierra
Leone—retold below as he presented it, with modifications
where necessary. Sankoh told the court that he was born
in 1946 to a family of some political prominence. In 1970,
when political conditions in the country deteriorated,
Sankoh’s family sent him to safety in Germany. He spent
fourteen years there, marrying a German woman,
fathering a child with her, learning the language, and
obtaining German residency. But after he divorced his
German wife in 1984, he returned to Sierra Leone, where
he set up shop as a printer in the country’s capital,
Freetown. Soon the political turmoil that had forced
Sankoh from Sierra Leone would flare anew, only this
time much of it would be caused by Sankoh’s uncle,
Foday Sankoh, and the rebel group that he led, the Revolu-
tionary United Front.
No. 07-2369 3
The RUF was a rebel group bent on overthrowing
Sierra Leone’s government, although it did not espouse
any particular ideology. The group was led by Foday
Sankoh, supported by the now-deposed Liberian president
Charles Taylor, and was responsible for Sierra Leone’s
decade-long civil war. The brutal war was notable for the
use of child soldiers, the atrocities committed—including
the widespread practice of amputation and mutilation
against civilians—and the interplay between the war and
the country’s valuable diamond mines. See generally
Barbara Crossette, Sierra Leone Rebel Leader Reportedly
Smuggled Gems, N.Y. TIMES, May 14, 2000; Howard W.
French, African Rebel With Room Service, N.Y. TIMES, Jun. 23,
1996; see also ISHMAEL BEAH, A LONG WAY GONE: MEMOIRS
OF A BOY SOLDIER (Farrar, Straus & Giroux 2007).
This case turns on Sankoh’s involvement with his uncle
and the RUF from 1992 through 1994. Sankoh could not
deny his connection to the group, but he sought to prove
before the immigration court that he was an unwilling
conscript to the RUF’s operations, a version of events that
the immigration judge and Board ultimately found to be
incredible. As Sankoh described it to the court, his uncle
and a band of RUF soldiers first asked him to help the
cause in 1992. He testified that they wanted his help
moving “something” from abroad into Sierra Leone.
Sankoh told the immigration judge that his confronters
were purposefully opaque in describing what this “some-
thing” was; as his asylum application recounted things,
however, they told him he would be procuring guns.
In any event, Sankoh’s uncle considered him the
perfect candidate for transacting business abroad. He had
a “valid passport to travel to Europe,” which meant he
could travel freely throughout the continent. And his
Sierra Leonean citizenship meant that he could import
4 No. 07-2369
goods into the country as well, something a foreigner
could not do. In short, he was someone that could func-
tion on both sides of a European transaction—both in
helping to procure goods abroad and in shepherding
them into Sierra Leone. Sankoh told the immigration
judge that he initially refused the offer. But after his
uncle struck his foot with the butt of a rifle and threatened
further “consequences” if he did not cooperate, he acqui-
esced. He also submitted that he went along because, if
he did not, “the rebels would kill me because they had
disclosed important secret information (such as hide-outs)
to me when ‘requesting’ my help to buy weapons.”
Eight trips to various points in Europe would ensue, and,
according to Sankoh, they all followed the same script. The
RUF would make all the arrangements, and his escort
would be an Eastern-European man named Alex, who
met Sankoh along his path to Europe. Alex would then
drop Sankoh off at a hotel, take his passport, and leave
him until all the shipments had been arranged. He said
that he never left the hotel or entertained options of
fleeing because he thought he was being watched. Instead,
he would stay in his hotel room most of the time he was
away, and at some point Alex would reappear, transaction
complete, and tell Sankoh it was time to go. When he
arrived back in Sierra Leone, he would then have to pick
up a shipment in his name at customs. Sankoh claimed
never to have known exactly what was in the shipment.
Someone in the RUF told him it was “second-hand tires,”
although he surmised that it was either “weapons, or
medical supplies.” At one point he read the word “rifles”
in Dutch along the side of one parcel, which he under-
stood due to its similarity to German. As mentioned above,
however, this version is in tension with his asylum applica-
No. 07-2369 5
tion where he claimed he was told the content of the
shipments from the outset. Once through customs, Sankoh
would then help get the “supplies to the rebels in the bush”
or, as he described his treatment, the RUF would use him
as a “pack animal[] to carry supplies.”
Sankoh claimed that his relationship with the RUF
soured after his eighth and last trip to Europe when he
was attacked by several of the group’s members. After
stopping for the night while transporting a shipment to
rebel troops, someone threw scalding water on his back
and four RUF members then gang-raped him. He told the
immigration judge that the rape was so forceful that he
needed to later undergo surgery to fix an inguinal hernia
that had resulted. Immediately after his rape, Sankoh
received some comfort from an RUF member who was
also moving materiel through the bush. The person was
able to speak German and, when he heard what had
happened to Sankoh and that he was planning to escape,
gave him some advice on the best way to do it. Sankoh said
that he made his move: marching through the bush,
flagging down a truck on a nearby road, and making his
way back to Freetown. Once in Freetown, Sankoh says that
he received help leaving the country from a friend at the
airport, Shaka Kanu. Kanu gave him an airplane ticket and
some cash, and, on February 6, 1994, he left Sierra Leone
bound for Europe.
After a brief detour through Belgium, Sankoh arrived
by train in Frankfurt, Germany. There, he learned that the
German government had revoked his residency due to the
length of his absence. And when he requested asylum, his
request was denied. Sankoh was able to remain in Ger-
many for nearly two-and-a-half years, during which time,
he said he received medical treatment for malaria, high
6 No. 07-2369
blood pressure, and the hernia that he claims resulted from
the rape. But after the German government denied all of
his requests to remain, Sankoh left for the United States
in July 1996, eventually overstaying his visa and receiving
the notice to appear.
To support his testimony, Sankoh also provided medical
records of his surgery in Germany to show his inguinal
hernia. He also gave the court two letters from two men
in Sierra Leone—one, Abu Koroma, claiming to be the
RUF member who helped him escape after his rape and
another, Dr. Kanu, saying he was Sankoh’s “close friend.”
The two claimed to know each other. Koroma, who had
helped Sankoh escape after his rape, said that he learned
Sankoh’s identity when he was visiting Dr. Kanu for
treatment. The doctor had a picture of Sankoh on a
wall, and when Koroma saw it, he recognized Sankoh
from the jungle and recounted the story of his escape. The
letters submitted to the court told the story of this seren-
dipitous encounter as well as the details surrounding
Sankoh’s rape.
Sankoh also claimed that the Sierra Leonean govern-
ment would imprison him should he return. He based
this claim on what he said had happened to his family
after he left. According to Sankoh, soon after he left
Sierra Leone, his mother’s house was firebombed and
destroyed, apparently in an effort to target his cousin.
Sankoh provided letters from a friend and the family
lawyer describing the bombing, the government’s efforts
to find Sankoh’s children, and the government’s threats
that Sankoh would meet a similar fate if he returned. He
also claimed that the government had been searching
for him in his former apartment in Freetown since he
left; officials thought that he had been a gunrunner for
No. 07-2369 7
the RUF, meaning he would be arrested and imprisoned
if he ever returned.
At the end of the hearing and just prior to closing
arguments, Sankoh’s attorney objected to the immigra-
tion judge’s decision not to admit a State Department
country report for Sierra Leone from 1993. From 1997
through the proceedings in 2005, Sankoh had sub-
mitted a number of documents setting out the country
conditions in Sierra Leone for the years in which he was
living there. The immigration judge who would ulti-
mately hear Sankoh’s case had a 100-page limit on docu-
mentary evidence, and Sankoh’s counsel was unsure
as to whether these previously submitted documents
would count against this limit. Efforts to clarify the
court’s position on the limit failed. And when pro-
ceedings began, Sankoh’s counsel submitted 65 pages
of documents focusing on the country conditions in
Sierra Leone since his original application for asy-
lum—essentially an update to the previously submitted
documents. When the immigration judge later told
Sankoh’s attorney that the previous documents were not on
file, she did not object, instead proceeding apace with
Sankoh’s case. After Sankoh had presented his case, the
judge asked whether “there [was] any other document
that hasn’t been considered that you want me to con-
sider,” and Sankoh’s attorney indicated that there was
not. The immigration judge then told the parties what
issues he wanted addressed in closing arguments. These
included Sankoh’s credibility, his claimed past persecu-
tion, and whether he was a persecutor of others. Sankoh’s
attorney asked to supplement the record with the country
reports from 1992 and 1993—the period during which
Sankoh was making his trips to Europe—but the
judge refused, saying the “case [was] closed for decision.”
8 No. 07-2369
In his written opinion, the immigration judge denied
all of Sankoh’s requests for relief. As is relevant here,
the court first found that Sankoh was statutorily ineligible
for asylum because he “assisted or otherwise participated
in the persecution” of others. In the court’s estimation,
Sankoh had admitted to traveling to Europe in order to
assist the RUF’s acquisition of weapons, which the RUF
subsequently used. And the court did not believe Sankoh’s
claim that he stayed in the hotel room the entire time
while others conducted the transactions. Alternately, the
court found Sankoh’s testimony incredible, discounting
nearly every aspect of Sankoh’s testimony. As to the arms
purchases, the court reasoned that a group like the RUF
would not “hesitate[] in fabricating documents,” making
Sankoh’s ability to freely travel to Europe less useful. And
the court did not credit Sankoh’s version of the rape. The
court noted that he had provided different dates for the
rape in his original application for asylum and his testi-
mony. Also, the facts that Sankoh was the nephew of the
RUF’s leader and had been “entrusted with the important
task of obtaining weapons” made a rape by the RUF rank-
and-file unlikely. Nor did the court believe that Sankoh
was entirely unaware of the purpose of his trips to Europe.
Although he testified that he only had suspicions as to
what he was helping to transport, in his original applica-
tion for asylum, he stated that the rebels had come to his
home to “’ask[]’ me to help them buy armaments in
Europe.” The court then questioned the letters from
Koroma and Dr. Kanu and the circumstances of their
conversation regarding Sankoh. Finally, the court noted
that the conditions in Sierra Leone had improved and
that Sankoh had no evidence that he would be persecuted
upon his return. With a dearth of credible evidence before
it, the court denied his various requests for relief and
ordered him removed.
No. 07-2369 9
Sankoh then challenged the immigration judge’s deci-
sion before the Board of Immigration Appeals, which
dismissed his appeal. Expanding upon the immigration
judge’s decision, the Board similarly found him
ineligible for asylum as a persecutor, reasoning that he
had admitted in his original asylum application that he
went to Europe to assist in procuring arms. The Board also
upheld the adverse credibility finding. The inconsistencies
between Sankoh’s initial application and his testimony
made his claim that the RUF forced him to go to Europe
implausible. The Board otherwise agreed with the immi-
gration judge’s rejection of Sankoh’s documentary evid-
ence regarding the rape, including the medical evidence
and the letters from Koroma and Dr. Kanu. And the
Board found that the evidence failed to prove that Sankoh
would face persecution if he returned to Sierra Leone.
Finally, the Board held that the immigration judge did
not deny Sankoh of due process either when he examined
him during the proceeding or when he refused to admit
the 1993 Country Report into the record. As to this last
point, the Board then took administrative notice of the 1993
country report. In his brief before that court, Sankoh had
described the RUF as relatively new at the time of his
involvement. Based on the report, however, the Board
concluded that Sankoh had “mischaracterize[d] the
status of the RUF [at that time] as ‘nascent’” and stated
instead that, at that time, “[t]he RUF was committing
horrible atrocities against civilians and aid worker[s] and
was already engaged in conscripting child soldiers.” This
appeal followed.
II. Discussion
On appeal, Sankoh raises a host of challenges to the
proceedings before the immigration judge and the Board.
10 No. 07-2369
First, he claims that he was denied due process (i) through
the immigration judge’s decision not to admit the 1992 and
1993 country reports into the record; (ii) through the
Board’s ultimate (and in his view erroneous) reliance on
the 1993 report on appeal; and (iii) as a result of the
immigration judge’s bias against his case. In addition, he
argues that the Board erred in upholding the immigration
judge’s adverse credibility findings. He also argues that the
Board erred in holding that Sankoh was ineligible for
asylum as a persecutor of others. Finally, Sankoh chal-
lenges the Board’s conclusions that he had failed to
show past persecution or a fear of future persecution for
purposes of his asylum, withholding of removal, and
Convention Against Torture claims. The following sec-
tions discuss why the agency did not err in denying his
requests for relief.
A. Procedural Claims
Sankoh raises three procedural challenges to the immi-
gration judge’s handling of his hearing. He argues first
that the immigration judge erred in refusing to admit the
country reports from 1992 to 1994. In addition, he argues
that the Board compounded this error when it improperly
took administrative notice of the facts contained in the
1993 report. Finally, Sankoh claims that the immigration
judge violated his due process rights by exhibiting bias
against his application.
These procedural arguments involve an amalgam of
constitutional and statutory claims. Aliens have pro-
cedural due process rights under the Fifth Amendment,
and this Court will enforce the entitlements set out there
when necessary. Reno v. Flores, 507 U.S. 292, 306 (1993). But
No. 07-2369 11
the statutes and regulations governing procedures before
the INS provide a number of rights to an alien, and we
have held that these guarantees, if secured, provide
constitutionally adequate process. See, e.g., Khan v. Mukasey,
517 F.3d 513, 517 (7th Cir. 2008). Given the canon of
constitutional avoidance, the upshot is that “aliens are
better-served by arguing . . . that immigration proceedings
infringed [some] statutory [or] regulatory right”—not
that the proceedings fell short of what the constitution
requires. Id. And in the event that there is no statute or
regulation on point, only then will this Court turn to
whether the process afforded passed constitutional
muster. As with most alleged procedural violations, after
a showing is made, the question becomes whether the
violation prejudiced his application in any meaningful
way. Hussain v. Keisler, 505 F.3d 779, 781 (7th Cir. 2007).
Sankoh’s first claim is that the immigration judge vio-
lated his statutory right to a “reasonable opportunity . . . to
present evidence on [his] own behalf” when it refused to
reopen the record to admit the country reports from 1992
to 1994. See 8 U.S.C. § 1229a(b)(4)(B); 8 C.F.R.
§ 1240.10(a)(4). Sankoh presented these country reports
after learning what the immigration judge wanted coun-
sel to discuss during closing arguments. The BIA re-
jected this claim because the immigration judge had
asked Sankoh’s counsel whether she had anything to add
to the record before closing it, and Sankoh’s counsel
responded in the negative. Because this is a legal con-
clusion, we review it de novo and agree that the judge’s
evidentiary decision did not deprive Sankoh of his “rea-
12 No. 07-2369
sonable opportunity” to provide evidence.1
Sankoh originally received his notice to appear in 1997.
During the ensuing eight years, Sankoh, represented by
counsel, submitted several documents to the court to
substantiate his claim of asylum. Sankoh’s claim arises
because the documents that he submitted regarding
the country conditions in Sierra Leone from the early
1990s were not in the record at the beginning of his
2005 proceedings. After the immigration judge told his
counsel this fact, however, she made no effort to intro-
duce the documents into the records during the hearing.
In his brief before this Court, Sankoh states that his
counsel considered the issue “moot” when learning that
the previous documents pertaining to country condi-
tions were not in the file; that is, she made no effort to
press the matter. Sankoh thus had the “opportunity” to
present the evidence he now claims was unfairly rejected.
1
Our conclusion rests entirely upon the examination of
whether Sankoh in fact had the statutorily entitled “opportu-
nity.” The immigration judge’s decision not to reopen the
evidence so as to admit the country reports was a
quintessentially discretionary action. See 8 C.F.R. § 1003.31(c)
(“The Immigration Judge may set and extend time limits for the
filing of applications and related documents and responses
thereto, if any.”). Thus, this Court is without jurisdiction to
review whether the immigration judge should have reopened
the evidence. 8 U.S.C. § 1252(a)(2)(B)(ii); see also, e.g., Ali v.
Gonzales, 502 F.3d 659, 660 (7th Cir. 2007); Subhan v. Ashcroft,
383 F.3d 591, 595 (7th Cir. 2004) (“[O]rders denying motions
for continuances, like other orders governing the management
of trials, are traditionally and indeed inevitably discretionary
in character.”).
No. 07-2369 13
He simply did not take advantage of it. Capric v. Ashcroft,
355 F.3d 1075, 1089 (7th Cir. 2004). Further, when the
immigration judge gave the parties an opportunity to
add more documentation prior to closing the record,
Sankoh’s counsel again passed on the offer. There was
nothing stopping Sankoh’s counsel from submitting
these documents anew during the proceeding. Thus,
Sankoh had his “reasonable opportunity . . . to present
evidence on [his] own behalf.”
Next, Sankoh argues that the Board erred in taking
administrative notice of the country conditions in Sierra
Leone in 1993. In rejecting his appeal, the Board took
“administrative notice of the 1993 State Department
Report” to conclude that Sankoh had “mischaracterize[d]
the status of the RUF in that report as ‘nascent’” and to
substantiate the alleged abuses the RUF had committed.
Sankoh challenges this on two grounds. First, he claims
that the Board violated his due process rights by taking
notice of a fact to which he did not have an opportunity
to respond. We do not agree. The Board has the authority
to take administrative notice of “uncontroverted facts,”
meaning facts “that can be characterized as ‘com-
monly acknowledged.’” Kaczmarczyk v. I.N.S., 933 F.2d
588, 594 (7th Cir. 1991). Id.; Rhoa-Zamora v. I.N.S., 971 F.2d
26, 36 (7th Cir. 1992). But, as mentioned, due process
affords an alien an “opportunity to be heard,” which
extends to the specific facts grounding the agency’s
decision to remove him. Kaczmarczyk, 933 F.2d at 594. One
could claim, as Sankoh does here, that the immigration
judge’s ability to make certain factual determinations
outside of the adversarial process—in which the alien
exercises his “opportunity to be heard”—falls short of due
process. As we have held many times, however, admin-
14 No. 07-2369
istrative notice does not violate the alien’s due process
rights because an alien can challenge any factual finding
through a motion to reopen. Id.; see also Rhoa-Zamora v.
I.N.S., 971 F.2d 26, 33-34 (7th Cir. 1992). As far as our
review of the briefs and the record indicate, Sankoh did
not file a motion to reopen. Nor did the Board deny him
an opportunity to file one or render the opportunity
meaningless through cursory review. Rhoa-Zamora, 971
F.2d at 34 n.8. Thus, Sankoh’s broadside challenge must
fail.
Sankoh also claims that the Board’s official notice of the
facts in the 1993 country report denied him due process
because the Board took official notice of a fact that the
parties disputed.2 He says that whether the RUF was in fact
engaged in atrocities when he was making his trips to
Europe was a heavily contested issue. In turn, the adminis-
trative notice of this fact prejudiced him because it ulti-
mately supported the Board’s conclusion that he had
persecuted others. We do not agree. The Board was well
2
Sankoh also claims that the Board mischaracterized the 1993
country report. In his estimation, the report did not indicate
that the RUF was involved in the atrocities pinned on it by the
Board. Aside from lacking merit—the report provides ample
support for the Board’s conclusions regarding the RUF—it is a
substantive and not a procedural claim. Whether the Board
reached the appropriate conclusion at the end of a fair process
concerns whether “substantial evidence” supported the
Board’s conclusion, not the constitutional adequacy of the
process afforded. See Capric, 355 F.3d at 1089 (rejecting “attempt
to cloak a substantial evidence challenge to the IJ’s decision in
due process constitutional garb”). As a result, we reject this
theory as well.
No. 07-2369 15
within its authority to credit the 1993 country report’s
findings regarding the RUF. As we have noted, the use of
country reports is not entirely unproblematic. Due process
demands an individualized assessment of each asylum
applicant. Kaczmarczyk, 933 F.2d at 594; Petrovic v. I.N.S.,
198 F.3d 1034, 1037 (7th Cir. 2000) (Asylum application
depends on existence of “specific facts demonstrating
that he has actually been the victim or persecution or
has good reason to believe that he will be singled out for
persecution.”). And unthinking reliance on general
country conditions without linking those conditions to
the applicant for asylum would undermine the individual-
ized nature of the inquiry. Kilokoqi v. Gonzales, 439 F.3d
336, 343 (7th Cir. 2005) (“State department reports are
entitled to deference, but the IJ must make an individual-
ized determination.”); Diallo v. Ashcroft, 381 F.3d 687, 700
(7th Cir. 2004); Begzatowski v. I.N.S., 278 F.3d 665, 671 (7th
Cir. 2002); cf. generally Bi-Metallic Inv. Co. v. State Board of
Equalization, 239 U.S. 441, 445 (1915). Not to mention the
fact that considerations of diplomacy may shade the
analysis offered by the State Department, perhaps making
it less than bedrock in its detailing of human rights abuses.
Niam v. Ashcroft, 354 F.3d 652, 658-59 (7th Cir. 2004). For
these reasons, in some circumstances, denying asylum to
an individual solely based on the generalized statements
in the report may not afford the meaningful “opportunity
to be heard” required by due process.
But that is not what happened here. The 1993 country
report provided evidence of the “political conditions in
[Sankoh’s] home country,” Kaczmarczyk, 933 F.2d at 594,
which is a suitable topic for notice. See Margos v. Gonzales,
443 F.3d 593, 598 (7th Cir. 2006) (noting in passing that
“[t]he immigration judge took administrative notice of the
16 No. 07-2369
fact that the Hussein regime and its control of Iraq ceased
as of April 2003”). In addition, the facts contained in the
country report were not “controverted” in the sense that
Sankoh had credible evidence to the contrary. See, e.g.,
Niam, 354 F.3d at 658-59. In fact, he testified that he
knew that the RUF was “a group which had already
started attacks against the civilian population” when he
agreed to take “business trips” to Europe. And of course
the 1993 report was one of the three country reports
Sankoh sought to admit after the close of evidence. So he
cannot realistically claim error from the Board’s accurate
representation of the facts in a report he sought to admit.
As a result, this claim fails as well.
Sankoh’s final procedural argument is that the immigra-
tion judge exhibited impermissible bias towards his claims.
He argues that the judge went beyond his role when he
aggressively questioned Sankoh, became “hostile” and
“impatient” during Sankoh’s testimony, and “comman-
deered cross-examination.” This, he claims, was an abdica-
tion of the neutrality expected of immigration judges and
denied him due process. Once again, we disagree. Unlike
Article III courts, an immigration court is a more inquisito-
rial tribunal. Congress has given immigration judges the
authority to “interrogate, examine, and cross-examine
the alien and any witnesses.” 8 U.S.C. § 1229a(b)(1).
Immigration judges are thus not bound by all of the
formalities that typify other adjudicative proceedings.
But this authority, though broader, has its limits. The
judge’s “discretion [in questioning] is bounded by the
applicant’s right to receive a fair hearing.” Podio v. I.N.S.,
153 F.3d 506, 509 (7th Cir. 1998). And when the immigra-
tion judge’s treatment of the applicant crosses the line
between his authority under § 1229a(b)(1) and unfairness,
a due process violation has occurred. Id.
No. 07-2369 17
Here, the record just does not support Sankoh’s claim
that the judge crossed the line. The judge’s questioning
began only after Sankoh’s attorney had first examined
him at length. Thus, Sankoh had an uninterrupted op-
portunity to be heard before the judge took over the
proceedings. In addition, when the judge’s questioning
did begin, it was not hostile. The interruptions that
Sankoh points to were simply efforts to keep the testi-
mony moving “in what [the judge] thought was the
right direction.” Bereza v. I.N.S., 115 F.3d 468, 473 (7th Cir.
1997). For example, when the judge asked “where and
how [the RUF’s] operations [were] conducted,” Sankoh
responded that “they come to Kilon, the town named Kilon
[and t]hey destroy there.” The judge then cut Sankoh
short to redirect the questioning, saying that he would
“repeat the question again because you’re not really
answering it.” These interruptions reveal an effort to keep
the testimony moving, not an impermissibly biased
tribunal. Iliev v. I.N.S., 127 F.3d 638, 643 (7th Cir. 1997).
Although the judge may have been testy at points with
both Sankoh and his attorney, due process does not
constitutionalize good manners. In sum, the immigration
judge did not deny Sankoh a fair hearing, and his claim
must therefore fail.
B. Substantive Claims
Sankoh raises several challenges to the rejection of his
requests for asylum, withholding of removal, and relief
under the Convention Against Torture. The Board adopted
and expanded upon the immigration judge’s decision to
deny all of Sankoh’s requests for relief, making the Board’s
the decision we review for “substantial evidence.” See Feto
v. Gonzales, 433 F.3d 907, 910-11 (7th Cir. 2006). This
18 No. 07-2369
standard of review means that “we assess whether the
BIA’s determination was ‘supported by reasonable,
substantial, and probative evidence on the record con-
sidered as a whole,’ and reverse only if the evidence
compels a contrary conclusion.” Tapiero de Orejuela v.
Gonzales, 423 F.3d 666, 671 (7th Cir. 2005). Based on that
review, we find adequate support for the Board’s decision.
The Board rejected Sankoh’s requests on a number of
grounds. On appeal, however, it is only necessary for us to
look at two: the adverse credibility finding and the lack of
proof that, if Sankoh was treated poorly in the past or if
likely to be treated poorly in the future, it was not the
result of Sankoh’s political views.3
Before delving into the particulars, an overview of the
relationship between Sankoh’s three claims is in order as
the factual bases for the claims overlap substantially. An
alien qualifies for asylum if he can show that he is a
“refugee.” 8 U.S.C. § 1158(b)(1)(A). The INA defines a
refugee as a person who is “unable or unwilling to avail
himself or herself of the protection of, that country be-
cause of persecution or a well-founded fear of persecution
on account of race, religion, nationality, membership in
a particular social group, or political opinion.” 8 U.S.C.
§ 1101(a)(42). If an alien establishes past persecution,
there is a rebuttable presumption of future persecution.
To still deport the alien, the government must then
show that country conditions have changed, meaning
3
The Board also found that Sankoh was ineligible for asylum
because he was a persecutor of others. Because we accept that
his lack of credibility and his failure to prove likely persecu-
tion suffice, we do not reach this issue and expressly decline
to adopt this rationale.
No. 07-2369 19
the past persecutors are no longer able to do so. 8 C.F.R.
§ 1208.13(b)(1). Similarly, an alien must receive with-
holding of removal “if the Attorney General decides that
the alien’s life or freedom would be threatened in that
country because of the alien’s race, religion, nationality,
membership in a particular social group, or political
opinion.” 8 U.S.C. § 1231(b)(3)(A). To qualify, the alien has
to show a “clear probability” that he will face persecu-
tion if removed. Zeqirir v. Mukasey, 529 F.3d 364, 371 (7th
Cir. 2008). Finally, to qualify for relief under the Con-
vention Against Torture, an alien must show that it is more
likely than not that he will be tortured if removed to the
proposed country of removal. 8 C.F.R. § 208.16(c)(2).
Notably, these latter two showings are more difficult
than proving that one is a “refugee.” See Zeqirir, 529 F.3d
at 371; Hussain v. Gonzales, 424 F.3d 622, 630 (7th Cir.
2005). As a result, a failed asylum claim—more specifically,
a finding that an alien does not have a “well-founded
fear of future persecution”—will eliminate both the
withholding of removal and Convention Against Torture
claims as well. Id. Here, Sankoh’s claim for asylum
falls—and thus his remaining claims necessarily fall as
well—because there is no credible evidence of past perse-
cution and no evidence establishing a “well-founded fear
of persecution.” The following sections discuss each in
turn.
1. Past Persecution
Sankoh’s claim of past persecution involves his treatment
by the RUF from 1992 to 1994. Specifically, he identifies
two acts of past persecution: the RUF conscripted him
into service running guns from Europe and members of
the RUF then gang raped him at one point while he
20 No. 07-2369
was transporting arms to a rebel camp. The Board rejected
both. First, it adopted the immigration judge’s adverse
credibility finding, which largely discredited Sankoh’s
version of events. For example, although Sankoh
claimed in his testimony that he was unaware of the
precise content of the shipments, he stated in his applica-
tion for asylum that he was told from the start that he
was going to get guns. In addition, the Board found it
implausible that Sankoh would be oblivious to the RUF’s
objectives when he was sent to Europe. He had professed
a familiarity with their aims elsewhere in his testimony,
and his claim that they sent him to Europe for “second-
hand tires” did not make sense given their ambitions. The
Board also found Sankoh’s account of the rape to be not
credible. The Board noted discrepancies in the dates and
circumstances surrounding the rape. And the Board
found it implausible that the RUF’s rank-and-file would
rape the nephew of their leader who was running guns
for the group. Nor was the Board persuaded by the docu-
mentary evidence; the medical records from Sankoh’s
surgery did not indicate that the rape caused his injuries,
and the letters from Koroma and Dr. Kanu lacked suf-
ficient indicia of reliability. Finally, the Board noted that
nothing in Sankoh’s account indicated that, even if the
events did occur as he stated, the RUF persecuted him on
account of his membership in a protected group.
On appeal, Sankoh first argues that the Board should
not have relied on many of these inconsistencies in
finding him not credible because Sankoh did not have an
opportunity to explain them away first. The inconsistencies
arose between his original asylum application, the
affidavit included with the application, and his testi-
mony. The immigration judge’s adverse credibility
No. 07-2369 21
finding came after his testimony, and the judge did not
flag the apparent consistencies and ask for an explana-
tion before issuing his opinion. This silence, Sankoh claims,
was error. In support of this proposition, he points the
Court to a decision from the Second Circuit, which, he
claims, holds that such an opportunity is required before
an adverse credibility finding. See Ming Shi Xue v. BIA,
439 F.3d 111, 121 (2d Cir. 2005). This claim is unavailing.
In the first place, we do not think Ming Shi advances
Sankoh’s position. There, the immigration judge found
the applicant not credible based on inconsistencies in the
applicant’s testimony. The Second Circuit held that the
immigration judge’s failure to give the applicant an
opportunity to explain these discrepancies was error. The
court differentiated the inconsistencies at issue there—
where “plausible explanations [we]re possible”—from
those where the discrepancies were “obvious to everyone.”
Id. at 127-28. After concluding that “[e]ach of the[ incon-
sistencies] allowed for a plausible explanation,” the court
remanded so that the applicant would have a chance to
explain. Id. at 127. Thus, the case stands for the proposition
that before the Board can rely on non-glaring inconsisten-
cies, the applicant must be given an opportunity to
explain any tension that might exist between facts.
As will be seen, the inconsistencies noted by the agency
in Sankoh’s case are both fairly “obvious” and material.
But, more importantly, this Court has steered clear of
this type of analysis when examining the adequacy of the
agency’s credibility determinations. Instead, we are
generally deferential to the immigration judge’s and the
Board’s credibility findings as long as they are “sup-
ported by ‘specific, cogent reasons.’” Diallo v. Gonzales,
439 F.3d 764, 766 (7th Cir. 2006). If the immigration
22 No. 07-2369
judge relies on minor or tenuous inconsistencies to find
an applicant not credible, the judge’s finding is not likely
based on “substantial, and probative evidence”—regard-
less whether the applicant had a chance to explain the
inconsistencies. Jalloh v. Gonzales, 423 F.3d 894, 898 (7th Cir.
2005); see also Kadia v. Gonzales, 501 F.3d 817, 821 (7th Cir.
2007) (“If any such pratfall warranted disbelieving a
witness’s entire testimony, few trials would get all the
way to judgment.”). Asylum hearings are human events,
and individuals make mistakes about immaterial points.
Id. Basing an adverse credibility finding on these kinds
of mistakes appears to be more of a game of “gotcha” than
an effort to critically evaluate the applicant’s claims. Id. It
may be true that the failure to explain a minor inconsis-
tency will weaken an applicant’s case; and so providing
such an opportunity could in turn strengthen the agency’s
reasoning. See Shtaro v. Gonzales, 435 F.3d 711, 716 (7th Cir.
2006) (“[A]dverse credibility determinations may not be
based on minor discrepancies that are easily explained . . .,
and the IJ did not attempt to ascertain whether these
omissions could be accounted for.”). But we have not
required a remand when an immigration judge fails
to provide such an opportunity, and we decline to do
so here.
Sankoh also claims that the alleged inconsistencies are
insufficient to support the Board’s adverse credibility
finding. The Board discounted Sankoh’s credibility
based on his testimony and the documentary evidence
submitted as part of his application. Although the “stan-
dard of review remains the same,” a “reviewing court is
in a better position to decide whether the credibility
determination was reasonable if the determination was
based entirely on documentary evidence.” Kadia, 501
No. 07-2369 23
F.3d at 820. Here, we have no difficulty concluding that
it was. Sankoh portrayed himself as an unwitting partici-
pant in the RUF’s gun-running. During his testimony,
he stated that the RUF “didn’t tell me what they were
buying” when he would make his trips to Europe. He also
said that he “didn’t know” that the RUF was sending
arms back when he would go to Europe and that they
told him that he was buying “second-hand tires.” He only
finally learned that there were guns in the shipments
after the final trip to Europe when he saw the word
“rifle” written in Dutch on the side of one container.
Contrast this version of events with his application for
asylum. There, he said that, when his uncle requested
that he travel to Europe, “several RUF rebels came to my
home in Freetown and ‘asked’ me to help them buy
armaments in Europe.” In addition, he justified his involve-
ment by saying “If I did not help, the rebels would kill
me because they had disclosed important secret informa-
tion (such as hide-outs) to me when ‘requesting’ my
help to buy weapons.” Sankoh also provided conflicting
information regarding the length of his trips to Europe.
In his testimony he said that the trips lasted a week to a
week-and-a-half; in his application he said that each trip
lasted two to six weeks.
These inconsistencies go to the “heart of [his] claim” that
he was pressed into service by the RUF and that the
group kept him in the dark about the nature of the trips.
Capric, 355 F.3d at 1090-91. The details surrounding the
trips varied, as did his claimed knowledge of their pur-
pose. This variation showed that Sankoh’s original claim
for asylum evolved in a manner likely to cast him in a
better light. And such changes in his story were sufficient
to cause the immigration judge to doubt his version of
24 No. 07-2369
events. An application for asylum by someone who had
reluctantly helped a notorious rebel group run guns is
starkly different from one in which a person is conscripted
to import various items, which unknowingly included
guns. This difference shades Sankoh’s claims of past
persecution by the RUF as well as his alleged rape and
the timing and reasons for departing Sierra Leone. Accord-
ingly, the Board’s decision to discount Sankoh’s credibil-
ity with respect to this story certainly passes muster
given the deferential standard of review.
In addition, Sankoh has not shown that the acts of
conscription and rape, if true, were motivated by his
political opinion. To prove persecution, the alien has to
show that the motivation for the persecutory acts was one
of the reasons set out in the INA: the alien’s “race, religion,
nationality, membership in a particular social group, or
political opinion.” 8 U.S.C. § 1101(a)(42)(A); I.N.S. v. Elias-
Zacarias, 502 U.S. 478, 481 (1992). Sankoh has not pro-
vided evidence that the motivation behind the RUF’s
persecutory acts was any of these. He claims that the RUF
pressed him into service because he had a passport that
would allow for free travel throughout the Europe. There
was no evidence, however, that this act of conscription
arose because of any of the characteristics identified by
the statute or that he was targeted because of his political
opinion. Doe v. Gonzales, 484 F.3d 445, 447-48 (7th Cir.
2007). We are mindful of the evidentiary challenges
facing those seeking asylum. But “the petitioner must
produce ‘some evidence’ that [the persecutory acts were]
motivated by a” characteristic listed in the INA. Li v.
Gonzales, 416 F.3d 681, 685 (7th Cir. 2005). The reason
provided by Sankoh here falls well short.
Further, he provided no political or persecutory mo-
tive behind his alleged rape. Rape can be an act of persecu-
No. 07-2369 25
tion if done “on account of [the alien’s] race, religion,
nationality, membership in a particular social group, or
political opinion.” Nakibuka v. Gonzales, 421 F.3d 473,
477 (7th Cir. 2005). But Sankoh provides no motivation
for the rape whatsoever. We have required some
showing of political opposition before we infer persecu-
tion on that basis. See Tapiero de Orejuela v. Gonzales, 423
F.3d 666, 673 (7th Cir. 2005); Li, 416 F.3d at 685. He
claims that he expressed antipathy towards the RUF at
some point, but never provided any evidence that his
political opinion motivated the alleged assault. He
states simply that he was raped and that he was con-
scripted, without showing that either were motivated
by his political opinion. As a result, Sankoh has not pro-
vided any credible evidence that he was persecuted as
defined by the INA.
To avoid this result, Sankoh claims that he was perse-
cuted for his imputed, as opposed to professed, political
opinion. When his cooperation ceased after his eighth
trip to Europe, he claims, the RUF decided to abuse him
and ultimately kill him. This decision, in turn, resulted
from a fear that Sankoh would reveal secrets about the
movement that he had learned during his forced coopera-
tion. To succeed on a claim that one suffered persecution
due to an imputed political opinion, an applicant needs to
show both “that [his] persecutors attributed a political
opinion to” him and that “this attributed opinion was
the motive for the persecution.” Mema v. Gonzales, 474
F.3d 412, 417 (7th Cir. 2007). Here, Sankoh has not shown
a basis for imputing a political opinion to him. An
imputed political opinion is necessarily referential; the
persecutors suspected the applicant had certain political
views because of the applicant’s relationship with some-
26 No. 07-2369
one who did. See id. (collecting cases). Sankoh has not
explained the RUF’s purported basis for imputing a
political opinion to him that he did not outwardly hold.
Even taking his claim at face value, the suspicion that
Sankoh would betray the RUF’s secrets does not indicate
that the group imputed a view to Sankoh because of his
family or social group. A person can betray secrets for
any reason—whether due to opposing political views or
simple resentment. In other words, there is simply a
failure of proof to Sankoh’s claim. Accordingly, we
cannot conclude that the Board erred in its conclusions
regarding past persecution.
2. Well-Founded Fear of Future Persecution
The Board also found that Sankoh had failed to provide
sufficient evidence of his well-founded fear of future
persecution should be return to Sierra Leone. If an alien
cannot establish past persecution, he can still gain
asylum based on a “well-founded fear of future persecu-
tion.” 8 U.S.C. § 1101(a)(42)(A). To prove this fear, Sankoh
must show “with credible and specific evidence” that he
will face persecution if he returns. Tapiero de Orejuela, 423
F.3d at 671-72. The Board held that he had not estab-
lished this fear. We cannot hold otherwise unless “no
reasonable fact-finder could fail to find the requisite fear
of persecution.” Elias-Zacarias, 502 U.S. at 484.
The Board adopted the immigration judge’s findings that
Sankoh did not have a well-founded fear of persecution
should be return to Sierra Leone. Sankoh claimed that he
faces persecution by the government in Sierra Leone for
his involvement with the RUF and he faces reprisal from
the RUF because he fled. We cannot conclude that the
No. 07-2369 27
immigration judge and the Board erred in concluding
that Sankoh has no well-founded fear of persecution. The
immigration judge looked to the 2004 country report to
conclude that there was no evidence that the govern-
ment was persecuting those affiliated with the RUF. The
most recent country report says much the same. Bureau
of Democracy, Human Rights and Labor, U.S. Dept. of
State, Sierra Leone: Country Report on Human Rights Practice
2007 (Mar. 11, 2008), available at http://www.state.gov/
g/drl/rls/hrrpt/2007/100503.htm. Although there are
accounts of prosecutions of former RUF members, the
country has largely stabilized. As the Eighth Circuit
recognized, “there is no evidence the government is
retaliating against those who were forcibly conscripted
by the rebels.” Jalloh v. Gonzales, 418 F.3d 920, 923 (8th
Cir. 2005). So even if Sankoh is seen as being affiliated
with the RUF, there is no evidence that he would be
wrongfully singled out by the government. And those
prosecutions against RUF members that do occur are
before tribunals that provide adequate process. In short,
Sankoh has mustered insufficient proof to show that he
can objectively fear persecution from the government if
he returns.
He also claims that the RUF will exact revenge against
him if he returns. But the basis for this alleged future
persecution is the fact that he left the RUF for greener
pastures abroad. Mistreatment based on an unwillingness
to involve oneself with a political group—assuming the
RUF meets this definition—does not alone show persecu-
tion. Tapiero de Orejuela, 423 F.3d at 674. Aside from the
immigration judge’s unrebutted observation that the
RUF is largely finished as a fighting force, if the RUF
were to seek revenge for Sankoh’s departure, this would
28 No. 07-2369
not be “on account of” any factor set out in the INA.
Sankoh bore the burden of showing a well-founded fear
of future persecution, and he has done little to challenge
the Board’s conclusion that he would not be persecuted
upon his return.
The only evidence Sankoh presents that could potentially
conflict with the State Department report are the two
letters sent to him from a friend and his family’s lawyer.
The first, from a friend named Alpha and dated February
25, 1999, describes the RUF’s efforts to find Sankoh and
its accusations that he was “disloyal” to Foday Sankoh.
The second, from a family lawyer and dated March 23,
2001, describes the government’s efforts to find Sankoh and
accusations that he was an RUF sympathizer. Sankoh
claims that the immigration judge improperly credited
the country report without explaining why these letters
fail to persuade. Taken at face value, he claims, they
show a basis for fearing future persecution. We do not
agree. The events described in these letters occurred
well before Sankoh’s present proceeding before the immi-
gration court. The relevant inquiry there was what treat-
ment Sankoh could expect should he return to Sierra
Leone. Letters from 1999 and 2001 do little to challenge
the conclusions stated in the later country reports re-
garding country conditions. In other words, even assuming
that it was unsafe for him to return to Sierra Leone at
the time the letters were written, he has offered no proof
that the claims therein continue to hold today. Accordingly,
we do not disturb the Board’s conclusion denying
asylum here on appeal. Because Sankoh’s other claims
rely on the same evidence, the failure of proof for his
asylum claim dooms his others as well.
No. 07-2369 29
III. Conclusion
For the foregoing reasons, we deny Sankoh’s petition
for review.
8-13-08