Toure v. Atty Gen USA

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
4-5-2006
Toure v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 05-1746
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-1746
SEYDOU TOURE
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
Respondent
Petition for Review of an Order
of the Board of Immigration Appeals
(No. A97-152-778)
Immigration Judge: R.K. Malloy
Submitted Under Third Circuit LAR 34.1(a)
March 9, 2006
Before: ROTH and ALDISERT, Circuit Judges, and
RODRIGUEZ,1 District Judge
(Filed : April 5, 2006)
1
The Honorable Joseph H. Rodriguez, Senior District Judge,
United States District Court for the District of New Jersey,
sitting by designation.
Francois-Ihor Mazur, Esq.
2207 Chestnut Street
Philadelphia, PA 19103
Counsel for Petitioner
Curtis C. Pett, Esq.
United States Department of Justice
Tax Division
P.O. Box 502
Washington, D.C. 20044
Peter D. Keisler, Esq.
Douglas E. Ginsburg, Esq.
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, D.C. 20044
Counsel for Respondent
OPINION
ALDISERT, Circuit Judge
Seydou Toure, a native and citizen of Cote d’Ivoire,
petitions for review of a final order of the Board of Immigration
Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”)
denial of his application for asylum, withholding of removal and
relief under the Convention Against Torture (“CAT”). For the
reasons set forth below, we will grant the petition.
2
I.
A.
The current situation in Cote d’Ivoire was born from the
increasingly divisive politics that arose following the death of its
first president, Felix Houphouet-Boigny. Houphouet-Boigny
was from the southern part of Cote d’Ivoire, which is
religiously, ethnically and linguistically distinct from the North.
The population of the South is predominantly Christian and
animist, and is comprised of various ethnic groups, most
prominently the Baoulé. French is the primary language. By
contrast, the northern part of the country is predominantly
Muslim in religion and Dioula and Senoufo in ethnicity. Dioula
is the primary language.
In the mid-1990s, political parties from the South
popularized the concept of “Ivoirianness.” They seized upon the
perception that northern Ivoirians have closer ethnic, cultural
and linguistic ties with the countries to the North than they do
with southern Cote d’Ivoire. Rassemblement des Republicains,
or Rally of the Republicans (“RDR”), was one of several
opposition parties that emerged to rally against the
discrimination against northerners.
In 2000, tensions escalated when RDR’s leader, Alassane
Ouattara, a Dioula, was stopped from standing in the
presidential elections after doubts were raised about his
nationality. That decision, which was perceived as another
instance of discrimination and human rights abuses against
northerners, infuriated RDR supporters.
On September 19, 2002, a rebellion began against the
government of President Laurent Gbagbo. A group of exiled
military members, calling themselves the Patriotic Movement of
Cote d’Ivoire, took control of towns in central and northern Cote
d’Ivoire. According to the United States Department of State
3
Country Report on Human Rights Practices for 2002 (“State
Department Report”), there was widespread suspicion, fostered
by the government and others, that the RDR was instrumental in
the coup.
Numerous human rights violations are alleged to have
been committed in the suppression of the riots and rebellion.
The State Department Report states that both “[s]ecurity and
rebel forces committed numerous human rights abuses.” (App.
at 156.) A report by Human Rights Watch states that the
Ivoirian government’s response to the rebellion “has not been
restricted to legitimate security measures, but has rather tended,
at minimum, to exacerbate existing divisions in Ivoirian society
and, at worst, to promote or cause human rights abuses . . .. In
many cases government security forces have carried out or
tolerated human rights violations by others . . . against
individuals who are considered sympathetic to the rebellion
simply by their ethnicity or religion.” (App. at 162.) The State
Department Report also observes that there have been “major
divisions within the military based on ethnic, religious, and
political loyalties.” (App. at 165.)
B.
Against this backdrop, we turn to the specific details of
Toure’s application. Toure was born in northern Cote d’Ivoire
in 1957 and is a Muslim of Dioula ethnicity. He joined the
Ivoirian Air Force in 1976. After receiving specialized training
in France in aircraft mechanics, he served as an officer in the
Ivoirian Air Force as an aircraft mechanic from 1979 to October
2002. Toure is married and has five children. Prior to fleeing
the country, he and his family lived in the southern city of
Abidjan, the economic and administrative center of Cote
d’Ivoire. His wife, Aissetou Toure, is also from northern Cote
d’Ivoire. She became active in the RDR in 1999, and later
became president of the Codody Section of the Rally of
Republican Women, a branch of the RDR. On at least one
4
occasion, she held an RDR meeting at their home. Although
Petitioner is a supporter of the RDR, he did not join because
members of the Ivoirian armed forces are prohibited from
engaging in political activities.
According to Toure’s testimony, three distinct acts of
persecution were perpetrated against him and his family.2 First,
in February 1998, after being discovered reading an opposition
newspaper while at work, he spent 15 days in a military prison,
after which he returned to military duties. He testified that he
was not beaten and that such detentions were a common form of
punishment when an officer violates a military rule.
Second, on January 9, 2001, Toure was arrested and
imprisoned along with 14 other men, 12 of whom were
northerners, on suspicion of abetting a failed coup d’etat. The
imprisonment lasted two days, during which time he was
severely beaten and sustained injuries, one of which left a scar
on his forehead. During the beating, he was allegedly told
something to the effect of: “You northerners, you have
economic power; and not satisfied with that, your brother
Ouattara wants to be president of the Republic; that never!”
The final and most serious incident occurred on either
October 20 or 21, 2002, five days after Toure was accused by
his superiors of giving information to the opposition press
regarding the arrival by air of arms and soldiers. Toure’s home
was ransacked while he was attending a neighborhood security
meeting. When he returned home from the meeting, he found
his family’s possessions thrown onto the street outside of the
house, and his children were crying and his wife was nowhere
2
Toure also testified that, following an RDR meeting in
January 2001, the government arrested his wife and took her to
prison for one night, where she was beaten. He does not
emphasize this incident in his brief, but we will consider it as
part of the factual background.
5
to be seen. When asked where their mother was, the children
informed him that men with guns wearing military uniforms had
taken her away.
His wife was released the next day, and appeared to have
been beaten. She told him that the men had asked her about his
whereabouts and accused both her and him of divulging the
aviation activities of the government to the press. She also told
him that they referred to her as a northerner and told her that
northerners would never have political power in Cote d’Ivoire.
(App. at 111-113.)
After this final incident, on October 23, 2002, Toure and
his family fled their home. Toure hid in his hometown of
Beoumi, while the rest of family sought refuge with Toure’s
sister in another part of Abidjan. While in hiding, Toure
contacted a hotline that had been established by the RDR for
people to report incidents involving violence by the government.
Subsequently, an article was published in an opposition
newspaper documenting the ransacking of Toure’s home. In the
article, Toure expressed fear for his life. After several weeks in
hiding, Toure fled Cote d’Ivoire and came to the United States.
His family remains in hiding in Cote d’Ivoire.
C.
Toure entered the United States through New York on
March 11, 2003. After being served with a notice to appear
charging him with removability pursuant to 8 U.S.C. §
1227(a)(1)(B), Toure conceded removability and applied for
asylum, withholding of removal and relief under CAT.
On September 18, 2003, at the close of testimony, the IJ
issued an oral decision denying Toure’s application for asylum,
withholding of removal and relief under CAT. The IJ based her
conclusion that Toure is not eligible for asylum on several
findings. First, she found that the incidents described above
6
were not sufficiently severe to constitute persecution.
Specifically, she found that the 1998 and 2001 detentions did
not rise to the level of persecution because the 1998 detention
was relatively comfortable and the 2001 detention, though
harsh, was of short duration. She emphasized that Toure
traveled abroad after both those events, including a 10-month
sabbatical to the United States in August 2001, and that his
failure to apply for asylum at that time indicated that he did not
fear for his safety. With respect to the ransacking of his house,
the IJ conceded that it was the “most serious offense,” but she
found that “it is not clear exactly what happened to his house,
the respondent did not present any evidence that his house was
ransacked.” (App. at 66.) The IJ observed that Toure is an
“educated man” and that he should have been able to obtain
evidence that his house had been destroyed.
Second, the IJ found that even if Toure was persecuted,
he failed to show that it was on account of statutorily-
enumerated grounds. The IJ concluded that Toure could not
have been targeted for his political opinion because he did not
belong to a political party. Moreover, because the rebels were
from all parts of Cote d’Ivoire and the rebel leader was not from
Toure’s tribe, the IJ found that Toure was not targeted for being
either a northerner or a Dioula. Although the IJ found credible
Toure’s testimony that his wife was active in the RDR, she
implicitly rejected this as a basis for the detentions and
ransacking.
Third, at least with respect to the ransacking of the home,
the IJ questioned whether the persecution was by the
government or forces that the government could control.
Because Toure is relatively wealthy, the IJ speculated that it
may have just been an ordinary burglary: “It is possible that
some individuals came to his home and ransacked his home
because of the valuables contained therein, not because of any
political opinion imputed to the respondent or his wife.” (App.
at 66-67.)
7
Fourth, the IJ found that Toure’s reason for not wanting
to return to Cote d’Ivoire is that he will be imprisoned and
court-martialed for deserting the military. The IJ concluded that
because prosecution under generally applicable laws does not
constitute persecution, Toure’s claim necessarily fails.
Finally, although the IJ did not make an explicit adverse
credibility finding, she found it “inconceivable” that Toure
would be allowed to maintain his position in the military and
travel both nationally and internationally if he were suspected of
being an opposition sympathizer.
The IJ then concluded that Toure’s failure to prove his
eligibility for asylum necessarily meant that he failed to satisfy
the more onerous burdens of proving entitlement to withholding
of removal or relief under CAT. The BIA affirmed the IJ’s
decision without opinion.
II.
We have jurisdiction over this petition under 8 U.S.C.
§1252, which grants federal courts of appeals jurisdiction to
review final orders of the BIA. When the BIA summarily
affirms the IJ’s decision, the decision we review is that of the IJ.
Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003) (en banc).
We review an IJ’s factual findings, including his or her
determination of whether an alien was subject to persecution or
has a well-founded fear of future persecution, under the
substantial evidence standard. See, e.g., Shardar v. Ashcroft,
382 F.3d 318, 323 (3d Cir. 2004).
Although substantial evidence review is deferential –
under which we may reverse only if “‘[a] reasonable adjudicator
would be compelled to conclude to the contrary,’” Shardar, 382
F.3d at 323 (quoting 8 U.S.C. § 1252(b)(4)(B)) – “that deference
is expressly conditioned on support in the record, and deference
is not due where findings and conclusions are based on
8
inferences or presumptions that are not reasonably grounded in
the record.” Dia, 353 F.3d at 249; see also Caushi v. Att’y Gen.,
436 F.3d 220, 226 (3d Cir. 2006) (same). An IJ must support
her factual determinations with “specific, cogent” reasons such
that her conclusions “flow in a reasoned way from the evidence
of record and are [not] arbitrary and conjectural in nature.” Dia,
353 F.3d at 250. Failure to do so “does not pass muster under
the substantial evidence rubric.” Id. at 254 (discussing Mulanga
v. Ashcroft, 349 F.3d 123 (3d Cir. 2003)).
III.
The legal precepts underlying Toure’s claim are well
established. The Attorney General has the discretionary power
to grant asylum to an alien who qualifies as a refugee within the
meaning of 8 U.S.C. § 1101(a)(42)(A). See 8 U.S.C. §
1158(b)(1). A refugee is “any person who is outside any
country of such person’s nationality . . . and who is unable or
unwilling to return to, and is unable or unwilling to avail himself
or herself of the protection of, that country because 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)(A).
To establish eligibility for asylum based on past
persecution, as Toure seeks to do here, an asylum applicant must
show: “(1) one or more incidents rising to the level of
persecution; (2) that is ‘on account of’ one of the
statutorily-protected grounds; and (3) is committed either by the
government or by forces that the government is either unable or
unwilling to control.” Mulanga, 349 F.3d at 132 (citing Gao v.
Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002)). A showing of past
persecution gives rise to a rebuttable presumption of a
well-founded fear of future persecution. See 8 C.F.R. §
208.13(b)(1); Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d
Cir. 2003). “That presumption can be rebutted if the INS
establishes by a preponderance of the evidence that the applicant
9
could reasonably avoid persecution by relocating to another part
of his or her country or that conditions in the applicant’s country
have changed so as to make his or her fear no longer
reasonable.” Mulanga, 349 F.3d at 132 (citations omitted).
Asylum applications also constitute simultaneous
applications for mandatory withholding of removal. See 8
C.F.R. § 208.3(b). To qualify for withholding of removal, an
applicant must show a “clear probability” that his or her life or
freedom would be threatened if he or she is deported. Lin v.
INS, 238 F.3d 239, 244 (3d Cir. 2001) (citing Chang, 119 F.3d
at 1066). “The question under that standard is whether it is
more likely than not that the alien would be subject to
persecution.” INS v. Stevic, 467 U.S. 407, 424 (1984). The
standard for eligibility for withholding of removal is more
exacting than the asylum standard. See Chang, 119 F.3d at
1066. “Thus, if an alien fails to establish the well-founded fear
of persecution required for a grant of asylum, he or she will, by
definition, have failed to establish the clear probability of
persecution” standard for withholding of removal. Zubeda, 333
F.3d at 469-470 (citation omitted).
To obtain relief under the Convention Against Torture,
an applicant must establish “that it is more likely than not that
he or she would be tortured if removed to the proposed country
of removal.” Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir.
2002) (quoting 8 C.F.R. § 208.16(c)(2)). Once an applicant
establishes a claim for relief under CAT, he or she may not be
removed to the country where the torture occurred or would
occur. Zubeda, 333 F.3d at 472.
The burden of establishing eligibility for asylum,
withholding of removal, and relief under CAT is on the
applicant. 8 C.F.R. § 208.13(a).
IV.
10
With these precepts in mind, we turn to the petition for
review. We will begin by analyzing whether substantial
evidence supports the IJ’s finding that Toure did not establish
the three elements necessary to show past persecution. For the
purposes of this analysis, we will assume that Toure’s testimony
is credible. Accordingly, if he is unable to establish those three
elements, his claim fails regardless of his credibility. If he does
establish those three elements, we must next examine whether
the Government rebutted the presumption of a well-founded fear
of future persecution that arises from a showing of past
persecution. Finally, if it has not, we must review the IJ’s
findings that (1) Toure did not sufficiently corroborate the home
invasion testimony, and (2) his testimony is implausible, which
we will treat as an adverse credibility finding.
A.
To establish eligibility for asylum based on past
persecution, Toure must first show that he suffered “one or more
incidents rising to the level of persecution.” See Mulanga, 349
F.3d at 132. In Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993), we
defined persecution as “threats to life, confinement, torture, and
economic restrictions so severe that they constitute a threat to
life or freedom.” Id. at 1240. “Fatin made clear that
‘persecution’ denotes ‘severe’ conduct and that, ‘persecution
does not encompass all treatment that our society regards as
unfair, unjust, or even unlawful or unconstitutional. If
persecution were defined that expansively, a significant
percentage of the world’s population would qualify for asylum
in this country . . ..’” Li v. Att’y Gen., 400 F.3d 157, 167 (3d
Cir. 2005) (quoting Fatin, 12 F.3d at 1240).
Because the IJ concluded that the circumstances
surrounding the ransacking of Toure’s home were “unclear,” she
explicitly addressed only the severity of the 1998 and 2001
detentions. Similarly, the Government’s brief focuses almost
exclusively on those two incidents, arguing that they were not
11
sufficiently severe to be considered persecution under this
Court’s precedents. Both the IJ’s oral decision and the
Government’s brief emphasize that Toure traveled abroad
several times following these detentions and voluntarily returned
to Cote d’Ivoire, undercutting his claim that these detentions
were severe enough to cause him to fear persecution in Cote
d’Ivoire. See Karouni v. Gonzales, 399 F.3d 1163, 1175 (9th
Cir. 2005) (“In certain cases, a petitioner’s return to the country
in which he or she fears persecution may undercut the
petitioner’s claim that his or her fear is objectively
well-founded.”).
Although “[t]his Court has not yet drawn a precise line
concerning where a simple beating ends and persecution
begins,” Voci v. Gonzales, 409 F.3d 607, 615 (3d Cir. 2005), we
are willing to assume, arguendo, that substantial evidence
supports the IJ’s conclusion that the 1998 and 2001 detentions,
standing alone, do not constitute persecution. See Dandan v.
Ashcroft, 339 F.3d 567, 573-574 (7th Cir. 2003) (holding that a
single three-day detention, in which respondent was deprived of
food and suffered a swollen face as a result of beatings from
police, did not compel reversal of BIA’s decision that
respondent had not suffered persecution). This, however, does
not end our inquiry. As the IJ conceded, the most egregious act
of persecution was the invasion of the home and the abduction
of Toure’s wife. We do not agree that the facts surrounding this
incident were “unclear.” Toure’s testimony was perfectly
coherent. Moreover, this incident was not followed by any
international travel and subsequent returns to Cote d’Ivoire.
Indeed, this incident was the proverbial straw that broke the
camel’s back; it caused Toure and his family to go into hiding.
Furthermore, we do not consider the home invasion in
vacuo; we weigh it in conjunction with the prior incidents. As
Toure testified, although he felt fear as a result of the prior
incidents, he returned to Cote d’Ivoire because he held out hope
that the unrest would dissipate. When the harassment continued
12
and escalated, it was then that Toure fled. Unlike the frog in the
parable who calmly remained in the pot of boiling water until it
was too late, Toure was well aware that his environment was
becoming more dangerous. We therefore do not think that
Toure’s return to Cote d’Ivoire and his hope for improved
conditions require us to insulate these prior incidents from the
ransacking and abduction.
Considering the incidents in toto, we conclude that, if
true, they would rise to the level of persecution. In re O-Z &
I-Z, 22 I. & N. Dec. 23, 26, 1998 WL 177674, 1198 BIA LEXIS
12, *6-7 (April 2, 1998) (holding that three beatings, including
one resulting in a knee injury, and a home break-in, constituted
persecution under the INA when considered “[i]n the
aggregate”); see also Voci, 409 F.3d at 614-615 (holding that
multiple beatings, one of which resulted in hospitalization, and
threats against family members rose to the level of persecution).
These were not “isolated incidents that [did] not result in serious
injury.” See Voci, 409 F.3d at 615 (collecting cases involving
isolated mistreatment causing no severe injuries). The 2001
detention lasted two full days and Toure was repeatedly beaten.
Then, in October 2002, his home was invaded by uniformed
men, his children terrorized, his possessions destroyed and
thrown into the street, and his wife abducted and beaten. These
acts were not merely “unjust,” “unfair” or “unlawful,” Li, 400
F.3d at 167; they were overt acts of persecution.
Other than contending that the circumstances surrounding
the home invasion were unclear, the Government does not
dispute this conclusion. Significantly, it does not refer us to any
cases where we concluded that similar acts would not constitute
persecution. Its only argument is that Toure’s claim of past
persecution is undercut by his wife’s continued presence in Cote
d’Ivoire without incident. See Hakeem v. INS, 273 F.3d 812,
816 (9th Cir. 2001) (“An applicant’s claim of persecution upon
return is weakened, even undercut, when similarly-situated
family members continue to live in the country without incident
13
. . ..”); Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005)
(agreeing with Hakeem that family members’ continued
presence can undermine the reasonableness of a petitioner’s fear
of future persecution).
We initially note that this argument relates more to the
issue of the reasonableness of Toure’s fear of future persecution
than to the question of whether he suffered past persecution.
Generally, evidence of similarly-situated family members’
continued presence in the country where the persecution
allegedly occurred is more probative of whether the petitioner
will suffer persecution if he were returned to his home country
than whether he suffered persecution in the past.
In any event, we do not agree that this principle has any
application where, as here, a petitioner testifies that the
similarly-situated family members are in hiding. In such
circumstances, a lack of continued persecution merely reflects
the family members’ ability to avoid detection, not the
Government’s desire, or lack thereof, to further persecute them.3
If anything, Toure’s testimony that his family remains in hiding
substantiates his assertion that he was persecuted. Accordingly,
we conclude that substantial evidence does not support the IJ’s
finding that the three incidents complained of by Toure were not
sufficiently severe to constitute persecution.
B.
3
Of course, if hiding means relocation to another part of the
county, this may be relevant to showing that petitioner could
reasonably avoid persecution by relocating within the country.
See 8 C.F.R. § 208.13(b)(1)(i)(B) (stating that the Government
can rebut the presumption of a well-founded fear arising from a
showing of past persecution by proving that “[t]he applicant
could avoid future persecution by relocating to another part of
the applicant’s country of nationality”). The IJ, however, never
made any finding on this issue.
14
To prevail, Toure must next show that the persecution
was “‘on account of’ one of the statutorily-protected grounds”
set forth at 8 U.S.C. § 1101(a)(42)(A). See Mulanga, 349 F.3d
at 132. Toure contends that he was persecuted on account of his
ethnicity, religion, political opinion and imputed political
opinion. The IJ found that Toure could not show that any harm
he may have suffered was on account of his political opinion
because he did not belong to any political party, and that he
could not show that it was on account of his ethnicity because
the opposition leader was not Dioula and members of the RDR
come from all over the country.4
These findings are not supported by the facts in the
record or the canons of logic. First, there is no requirement that
a petitioner be a card-carrying member of a political party to be
considered persecuted on account of political opinion. It is
indisputable that individuals are able to, and do, hold political
opinions even if they do not belong to a political party, and that
the INA protects individuals who do not belong to a political
party to the same degree as those who do. Indeed, a person may
be persecuted on account of imputed political opinion even if he
or she does not actually subscribe to them. Balasubramanrim v.
INS, 143 F.3d 157, 165 n.10 (3d Cir. 1998).
The IJ’s second conclusion – that Cote d’Ivoire’s civil
conflict is not regional or ethnic in nature – is contrary to every
official account of Cote d’Ivoire’s civil war, as well as Toure’s
testimony. Although some southerners belong to the RDR and
4
According to the IJ: “The Court, therefore, could not find
that the respondent was targeted for his political opinions
because he did not belong to a political party nor was he being
targeted because of the region of the country from which he
hails because the rebel group consists of members of individuals
[sic] from all parts of the Ivory Coast nor was he being targeted
for his ethnic group because the rebel leader is a member of
Senufo [sic] tribe.” (App. at 64.)
15
other opposition groups, every one of these confirmed sources
indicates that the conflict is primarily regional and ethnic in
nature. Indeed, the conflict chiefly stems from perceived
discrimination against northerners by southern political parties.
The IJ’s emphasis on the Senoufo ethnicity of the RDR
leader is particularly misplaced. The Senoufos and the Dioulas
are the two major ethnic groups in the North, and both oppose
what they perceive as discrimination against northerners. That
the RDR has a Senoufo leader is therefore unsurprising, and
does not rationally support the IJ’s conclusion that the conflict
is not ethnically or regionally based.
Nothing in Toure’s testimony supports the IJ’s
conclusion that he was not persecuted on account of some
combination of his ethnicity, religion, political opinion and
imputed political opinion. Toure testified that he was initially
imprisoned for reading opposition newspapers at work,
indicating that the government was aware of his opposition
sympathies. Further, his wife was a prominent RDR member,
held an RDR meeting in their home on at least one occasion, and
was arrested for RDR-related activities. It therefore seems
highly probable that Toure’s wife’s political activities would be
attributed to him.
Even more significant, the persecutors’ statements clearly
indicate that the persecutions were politically and ethnically
motivated. During the January 2001 detention and beating, in
which 13 of the 15 men detained were northerners, Toure was
told something to the effect of: “You northerners, you have
economic power; and not satisfied with that, your brother
Ouattara wants to be president of the Republic; that never!” He
was also questioned regarding his wife’s political activities.
Furthermore, after the home invasion, his wife told him that the
men made statements about northerners and political power. In
light of this testimony, there is no logical or evidentiary basis for
the IJ’s conclusion that Toure was not persecuted on account of
16
one of the statutorily-enumerated grounds. See Shardar, 382
F.3d at 324 (“The evidence indicates these beatings were
politically motivated – the perpetrators yelling, ‘Ershad time is
over. Now is, is [sic] BNP time.’”).
C.
Third, to show eligibility for asylum based on past
persecution, Toure must establish that the acts of persecution
were “committed either by the government or by forces that the
government is either unable or unwilling to control.” Mulanga,
349 F.3d at 132. The IJ concluded that petitioner failed to
establish the requisite governmental nexus, at least with respect
to the home invasion. She reasoned that because Toure was
relatively wealthy, the October 2002 incident could have been
a common burglary.
This finding is speculative and lacks support in the
record. Toure testified that his children told him that the home
invasion was perpetrated by men in military uniforms with guns.
They abducted his wife, questioned her about Toure’s
whereabouts and made statements about “northerners.” There
is simply no basis for concluding that the ransacking was
perpetrated by common thieves.
The Government contends that “[a]lthough petitioner
testified that he had heard that the act was perpetrated by
‘people with uniform, military uniform and guns,’ that does not
establish that it was committed by Ivoirian soldiers . . . The State
Department Report on Human Rights Practices states that
criminals in the Ivory Coast perpetrate crimes while wearing
fatigues and impersonating the country’s security forces.” (Br.
at 20.) We cannot accept the proposition that because some
criminals pose as military personnel, the wearing of military
uniforms is insufficient to prove that the home invasion was
perpetrated by the Ivoirian government. In resorting to this
argument, the Government commits what logicians describe as
17
the “converse fallacy of accident.” What it does is to anoint
isolated incidents with the chrism of generality, and create a
general rule from an exceptional circumstance. The fallacy lies
in labeling the exception – “the accident” – as the general rule
itself; hence the name, “converse fallacy of accident.”
Moreover, even if we were to accept the Government’s
fallacious argument that the wearing of military uniforms is
insufficient in itself to establish the requisite governmental
nexus, neither the IJ nor the Government has explained why
common criminals would abduct Toure’s wife, ask her about his
whereabouts and make comments about northerners.
Accordingly, we conclude that the IJ’s finding that the home
invasion was not perpetrated by the government is not supported
by substantial evidence.
D.
Having concluded that the IJ’s finding that Toure did not
establish the three Mulanga factors is not supported by
substantial evidence, we now turn to whether the Government
rebutted the presumption of a well-founded fear of future
persecution that accompanies a showing of past persecution.
The Government argues that even if Toure was subject to past
persecution, his reason for not wanting to return to Cote d’Ivoire
is that he will be imprisoned and court-martialed for deserting
the military. The Government argues, and the IJ agreed, that
desertion is a criminal act and that prosecution in conformity
with generally applicable laws is not the same as persecution.
We initially observe that this argument appears to be
based on an assumption that there has been a “fundamental
change in circumstances,” 8 C.F.R. § 208.13(b)(1)(i), and that
Toure no longer reasonably fears any other form of persecution.
The Government, however, did not present any evidence of
changed circumstances at the hearing, and the IJ did not make
any findings as to changed circumstances. Although Toure did
18
testify that he feared being court-martialed and imprisoned, he
never testified that this was the only harm that he feared he
would suffer if he were returned to Cote d’Ivoire. It has
therefore never been established that the only risk Toure faces
should he be returned to Cote d’Ivoire is the prospect of
prosecution by the military, rather than persecution by the civil
government.
Even if we were to assume that the only risk Toure faces
upon return to Cote d’Ivoire is the prospect of lawful
prosecution, the Government’s argument would still fail.
Although we have stated that, “[a]s a general matter . . . fear of
prosecution for violations of ‘fairly administered laws’ does not
itself qualify one as a ‘refugee’ or make one eligible for
withholding of deportation,” Shardar, 382 F.3d at 323, this rule
does not apply where, as here, a petitioner must necessarily
break a law to escape persecution.5 For example, if an alien
faced with ongoing persecution flees his country in violation of
laws that prohibit emigration without permission, punishment
for violating those laws would merely be an extension of the
past persecution. It is generally no answer to say that, upon
return, the alien only faces the risk of prosecution.6 Here, Toure
5
We do agree with the IJ insofar as she concluded that,
absent a showing of past persecution that forced Toure to desert
the military, prosecution for desertion would not qualify as
persecution. See Chang v. INS, 119 F.3d 1055, 1065 (3d Cir.
1997) (holding prosecution pursuant to generally applicable
laws is generally not persecution unless it targets individuals on
the basis of one of the five statutorily-enumerated factors).
From our examination of the record, however, Toure did not
make this argument; his asylum claim is based solely on a
showing of past persecution.
6
The strongest argument, not raised by the Government here,
is that if Toure is punished on his return it will be on account of
criminal wrongdoing rather than on account of his political
19
testified that he left his position in the military because his
family was in grave danger of being harmed by government
authorities. See State Department Report (noting that members
of the security forces committed more than 200 extrajudicial
killings and reporting the existence of death squads and the
discovery of mass graves). If his testimony is believed, then
prosecution and imprisonment for desertion would constitute
persecution under these circumstances.
IV.
Having determined that the IJ’s conclusion that Toure
failed to establish past persecution is not supported by
substantial evidence if Toure’s testimony is believed, and that
the Government has not rebutted the presumption of a well-
founded fear of future persecution, we must now turn to two
additional deficiencies cited by the IJ. First, the IJ complained
that Toure had not produced photographs or other
documentation to corroborate his testimony regarding the
opinion or ethnicity. We agree with the Ninth Circuit, however,
that the Government’s prosecution would at least be partially
motivated by Toure’s ethnicity and imputed political opinion.
See Nuru v. Gonzales, 404 F.3d 1207, 1227-1228 (9th Cir.
2005) (holding that the mere fact that soldier in the Eritrean
military, in fleeing the country in order to avoid continued
persecution for his political opinions, may have committed a
criminal act of desertion, for which he could lawfully be
punished, did not preclude him from showing a well-founded
fear of future persecution based upon his political opinion;
prosecution would be motivated in part by statutorily-
enumerated grounds). We find it highly improbable that Toure
would be prosecuted for desertion if he actively supported the
Ivoirian government and was forced by rebel forces, rather than
the Ivoirian government, to flee the country. See Chang, 119
F.3d at 1065 (holding that China’s motive in prosecuting
defector was “at least in part ‘on account of’” his political
objections).
20
October 2002 home invasion. Second, the IJ appears to have
made an implicit adverse credibility finding, stating that it is
implausible that Toure would be permitted to maintain his
government employment and to travel internationally if the
government at the same time sought to harm him. As we
recently made clear in Chen v. Gonzales, corroboration and
credibility, although intuitively related, are distinct concepts that
should be analyzed independently. 434 F.3d 212, 221 (3d Cir.
2005).
A.
Corroboration is not necessarily required to establish
eligibility for asylum, and relief may be granted solely on the
credible testimony of the applicant. 8 C.F.R. §§ 208.13(a),
208.16(b). In asylum and withholding of removal cases,
however, the BIA has adopted rules which require corroboration
in instances where it is reasonable to expect such proof from a
witness and there is no satisfactory explanation for its absence.
In re S-M-J-, 21 I. & N. Dec. 722, Interim Decision 3303, 1997
WL 80984 (BIA 1997). We adopted these rules as our own in
Abdulai v. Ashcroft, 239 F.3d 542, 551-552 (3d Cir. 2001), and
formulated a three-part inquiry: (1) an identification of facts for
which it is reasonable to expect corroboration; (2) the presence
or absence of such corroboration in the record; and (3) the
adequacy of applicant’s explanation for its absence. Id. at 554.
We observed in Abdulai, without expressing agreement, that the
BIA has included in this category “evidence of an applicant’s
place of birth, media accounts of large demonstrations, evidence
of a publicly held office, or documentation of medical
treatment,” as well as “letters from family members remaining
in the applicant’s home country.” See id. (citations omitted).
We have repeatedly held that the BIA’s (or, as here, IJ’s)
failure to engage in the three-part inquiry described above
requires that the BIA’s findings regarding corroboration be
vacated and remanded. See Abdulai, 239 F.3d at 555 (“Because
the BIA’s failure of explanation makes it impossible for us to
review its rationale, we grant Abdulai’s petition for review,
21
vacate the Board’s order, and remand the matter to it for further
proceedings consistent with this opinion.”); Voci, 409 F.3d at
617 (vacating and remanding where the IJ merely complained
that Voci had not produced documentation or medical records
to corroborate his claims of having been hospitalized after being
beaten by the Albanian police, and neither she nor the BIA
engaged in the three-part inquiry); Mulanga, 349 F.3d at 136
(reversing and remanding where the IJ did not alert petitioner
that the absence of corroboration would be fatal to the
application and did not give petitioner the opportunity to explain
the absence).
Against this background, we will vacate the decision and
remand for further analysis.7 The IJ did not engage in the three-
7
We note that Toure did present corroboration of the home
invasion in the form of an article from an opposition newspaper.
The article shows a picture of items recovered from the home
and quotes Toure discussing what had happened. It is unclear
whether the IJ excluded this evidence or merely disregarded it.
The Government objected to its introduction under 8 C.F.R. §
287.6, which requires the authentication of “official records.”
The IJ appears to have erroneously sustained this objection. In
her oral decision, however, the IJ does mention the article, but
then goes on to discount it because of a letter from the United
States Embassy in Cote d’Ivoire stating that the article appeared
to be from a newspaper in Boukae, which is majority RDR
territory, and therefore potentially “extremely biased.” After
discussing the Embassy letter, the IJ never mentioned the article
again. Indeed, she specifically stated that Toure “did not present
any evidence that his house was ransacked.” (App. at 66.)
Although we agree with the Government that the article is not
conclusive proof of the ransacking because it is based largely on
statements by Toure, we nonetheless consider it to be an
important piece of evidence. At the very least, it supports one
of two conclusions: (1) that Toure’s house was ransacked and he
honestly believes that it was done by military forces, or (2) that
Toure had the foresight to plant a fake story in a newspaper
22
part inquiry described above. Although the IJ identified the
corroborative evidence that she expected and why she expected
it, she never gave Toure the opportunity to provide an
explanation for its absence or to seek supporting evidence from
his relatives in Cote d’Ivoire. It was not until the oral decision
that the IJ indicated that she expected such evidence.
Accordingly, Toure was not provided with notice and an
opportunity to present an explanation. See Mulanga, 349 F.3d
at 136; see also Senathirajah v. INS, 157 F.3d 210, 221 (3d Cir.
1998) (“The procedures for requesting asylum and withholding
of deportation are not a search for a justification to deport.
Justice requires that an applicant for asylum be given a
meaningful opportunity to establish his or her claim.”).
We also have doubts about the reasonableness of the IJ’s
demand for corroboration. As we observed in Senathirajah v.
INS:
It is obvious that one who escapes persecution in
his or her own land will rarely be in a position to
bring documentary evidence or other kinds of
corroboration to support a subsequent claim for
asylum. It is equally obvious that one who flees
torture at home will rarely have the foresight or
means to do so in a manner that will enhance the
chance of prevailing in a subsequent court battle
in a foreign land. Common sense establishes that
it is escape and flight, not litigation and
corroboration, that is foremost in the mind of an
alien who comes to these shores fleeing detention,
torture and persecution.
before he fled to the United States. See Aguilera-Cota v. INS,
914 F.2d 1375, 1382-1383 (9th Cir. 1990) (concluding that a
newspaper article reporting an alleged incident of persecution
offered in support of oral testimony is sufficient documentary
evidence of such an incident).
23
157 F.3d at 215-16.
Here, The IJ focused solely on Toure’s sophistication and
education without addressing the circumstances surrounding his
departure. The IJ did not even acknowledge that it may be
unreasonable to expect Toure to take pictures of his home in the
midst of flight, or that he may have not known that he would
later seek asylum and need to provide evidence. We are
particularly troubled by a portion of the IJ’s oral decision where
she states that “[d]espite [the October 2002 home invasion] the
wife continued her political activities and she held another
meeting or participated in another meeting, and the police
dispersed the meeting even though she had been warned not to
hold additional meetings.” (App. at 63.) This statement is
devoid of any support in the record. The Toures fled their home
and went into hiding on October 23, 2002, two or three days
after the home invasion. (App. at 115.) There was no testimony
that Toure’s wife ever attended any meetings after the home
invasion.
In light of the IJ’s failure to engage in the required In re
S-M-J-/Abdulai corroboration analysis, to permit Toure to
explain the absence of corroborating evidence, and to accurately
represent the facts surrounding the home invasion, we will
vacate and remand. We acknowledge that our scope of review
of corroboration determinations was recently altered by the
REAL ID Act of 2005, which provides that “[no] court shall
reverse a determination made by the trier of fact with respect to
the availability of corroborating evidence . . . unless the court
finds . . . that a reasonable trier of fact is compelled to conclude
that such corroborating evidence is unavailable.” § 101(e),
Pub.L. No. 109-13, 119 Stat. 231, 305, codified at 8 U.S.C. §
1252(b)(4)(D); see also Chen, 434 F.3d at 218. This provision
was effective upon passage of the REAL ID Act on May 11,
2005, and applies to any case “in which the final administrative
removal order is or was issued before, on, or after such date.” Id.
§ 101(h)(3), 119 Stat. at 305-306.
We do not believe that the REAL ID Act changes our
24
disposition of this case. We do not interpret 8 U.S.C. §
1252(b)(4)(D) to alter our rules that (1) an IJ has a duty to
develop an applicant’s testimony, especially regarding an issue
that she may find dispositive, see In re S-M-J-, 21 I. & N. Dec.
at 723-726 (“Although the burden of proof in establishing a
claim is on the applicant, the Service and the Immigration Judge
have a role in introducing evidence into the record.”), and (2) as
a logical predicate to appellate review, the BIA must adequately
explain the reasons for its decisions, Abdulai, 239 F.3d at 555
(“[T]he availability of judicial review (which is specifically
provided in the INA) necessarily contemplates something for us
to review.”). See Singh v. Ashcroft, 2006 WL 197159 at *5 (3d
Cir. Jan. 26, 2006) (unpublished) (remanding for failing to
explain a corroboration determination in a post-REAL ID Act
case). Indeed, it is impossible for us to determine whether “a
reasonable trier of fact [would be] compelled to conclude that
such corroborating evidence is unavailable,” 8 U.S.C. §
1252(b)(4)(D), unless a petitioner is given the opportunity to
testify as to its availability.8 Accordingly, we will vacate and
remand for a new corroboration determination.
8
We also note that it is doubtful that the provisions of 8
U.S.C. § 1252(b)(4)(D) even apply here. The use of the word
“is” in § 1252(b)(4)(D) indicates that this provision only applies
when the corroborating evidence demanded is presently
available, not when a petitioner failed to document something in
the past. Here, the IJ demanded photographic evidence of the
ransacking. If no such pictures were taken, then photographic
evidence would not be presently available because, presumably,
the home has been cleaned up or passed on to new owners.
Section 1252(b)(4)(D) would therefore not apply. See Hor v.
Gonzales, 421 F.3d 497, 500-501 (7th Cir. 2005) (holding that
the IJ’s demand that Hor provide copies of documents he had
filed in court in Algeria was improper because there was no
reason to doubt that Hor did not possess such copies and that the
court cannot presume that such copies are as readily available in
disordered nations as in the United States).
25
B.
Adverse credibility determinations are reviewed under
the substantial evidence standard. Gao, 299 F.3d at 272. “We
look at an adverse credibility determination to ensure that it was
appropriately based on inconsistent statements, contradictory
evidence, and inherently improbable testimony . . . in view of
the background evidence on country conditions.” Dia, 353 F.3d
at 249 (internal citation and quotation marks omitted).
Here, the IJ did not make an explicit adverse credibility
finding. She also did not find that Toure made any inconsistent
statements or submitted contradictory evidence. She did,
however, state that “it is inconceivable that a person who is able
to maintain his employment with the military, a branch of the
government, would be someone that the government wanted to
harm.” (App. at 64.) Moreover, she repeatedly referenced
Toure’s employment and his international travel for the
government as a reason to doubt his testimony.
Mere doubts about the plausibility of a petitioner’s
testimony are an insufficient basis for denial of an application.
If the BIA denies an asylum application solely because it finds
the applicant not credible, it generally must clearly and
explicitly state that it has made an adverse credibility finding
and that it bases its denial on that finding. We have several
times affirmed the rule that where an IJ or the BIA fails to make
an explicit credibility finding, we will proceed as if the
applicant’s testimony were credible.9 See Lusingo v. Gonzales,
420 F.3d 193, 197 n.5 (3d Cir. 2005); Li, 400 F.3d at 163-164;
9
We note that Congress codified this rule in the REAL ID
Act of 2005. The relevant provision states that “if no adverse
credibility determination is explicitly made, the applicant or
witness shall have a rebuttable presumption of credibility on
appeal.” 8 U.S.C. § 1158(b)(1)(B)(iii). Because this provision
applies only to asylum applications filed after May 11, 2005, it
cannot apply to Toure’s application.
26
Kayembe v. Ashcroft, 334 F.3d 231, 235 (3d Cir. 2003).
Significantly, the Government does not contend that the IJ made
an adverse credibility finding here.
Even if we were to treat the IJ’s doubts regarding the
plausibility of Toure’s testimony as an adverse credibility
finding, that conclusion would not be supported by substantial
evidence. As we made clear in Dia, “[w]here an IJ bases an
adverse credibility determination in part on ‘implausibility,’ as
the IJ did here, such a conclusion will be properly grounded in
the record only if it is made against the background of the
general country conditions.” Id. Here, there is no basis in the
record for the IJ’s incredulity. Indeed, contrary to the IJ’s
apparent assumption that the Ivoirian government is run in a
top-down fashion, the State Department Report states that
“[t]here were major divisions within the military based on
ethnic, religious, and political loyalties.” (App. at 156.) We do
not agree that it is implausible that Toure could be persecuted by
some government factions and nonetheless maintain his
employment with the military.
Our view is reinforced by Toure’s testimony that many
people in the military were suspected of supporting the RDR.
For example, 14 other men from the military were detained,
interrogated and beaten in the January 2001 incident. Cote
d’Ivoire would not be the first country to hunt through its ranks
for subversives without actually firing every person it suspected.
That the government chose not to fire every suspected dissident
is especially understandable when those suspected, like Toure,
are integral employees and do not regularly work with classified
information. (See Toure testimony, app. at 57 (explaining that
he believes he was not fired because he was one of only 10
specialists and because the government had no actual proof that
he belonged to the opposition party).) Moreover, it is unknown
whether Toure would have maintained his position after the
October 2002 home invasion. This was the most severe act of
persecution, indicating either that the government was relatively
certain that Toure was actively supporting the opposition or that
it was reducing its tolerance for those even suspected of having
27
RDR ties.
In sum, the record is barren of support for the IJ’s
conclusion that Toure’s testimony is implausible. Assuming
that the IJ made an adverse credibility finding – and this is only
an assumption – such a factual conclusion would be based on
nothing more than speculation and conjecture. Accordingly, we
will vacate this finding.
V.
The IJ here found fault in virtually every aspect of
Toure’s application. Upon review of the record, we conclude
that none of the IJ’s findings adverse to Toure are supported by
substantial evidence. An IJ must do more than simply list off all
the doubts he or she may have about a petitioner’s application
in the belief that at least one of them will be sufficient to support
the decision. Although an IJ may support his or her decision
with alternate findings, and is in many cases encouraged to do
so, at least one of the findings must be sufficiently well-
developed and grounded in the record to sustain the decision.
Here, the IJ made six findings that could be considered
dispositive of Toure’s application. Some are simply speculative
or insufficiently developed; others defy the canons of logic. See
Dia, 353 F.3d at 250 (“[W]e find that the IJ’s conclusions do not
flow in a reasoned way from the evidence of record and are, at
times, arbitrary and conjectural in nature. Repeatedly, we are
left wondering how the IJ reached the conclusions she has
drawn.”).
***
For the reasons detailed above, we will grant the petition
for review, vacate the BIA’s decision and remand for further
proceedings consistent with this opinion.10
10
Because many of the same errors infected the IJ’s
determination that Toure did not qualify for withholding of
28
removal or protection under CAT, we will also vacate and
remand with respect to those claims.
29