Akouavidovi Djondo v. Eric Holder, Jr. , 496 F. App'x 338 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1441
AKOUAVIDOVI DJONDO,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: September 18, 2012 Decided: November 9, 2012
Before NIEMEYER, SHEDD, and DAVIS, Circuit Judges.
Petition for review denied by unpublished per curiam opinion.
Judge Davis wrote a dissenting opinion.
ARGUED: Matthew Weaver Steele Estes, SKADDEN, ARPS, SLATE,
MEAGHER & FLOM, LLP, Washington, D.C., for Petitioner. Lindsay
Corliss, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Respondent. ON BRIEF: Donald P. Salzman, SKADDEN, ARPS,
SLATE, MEAGHER & FLOM, LLP, Washington, D.C., for Petitioner.
Tony West, Assistant Attorney General, Civil Division, Daniel E.
Goldman, Senior Litigation Counsel, Office of Immigration
Litigation, Elliott Daniels, Law Clerk, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Akouavidovi Djondo, a native and citizen of Togo, was
admitted into the United States in April 2005. Several months
later, Djondo applied for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”). An
Immigration Judge (“IJ”) denied her application after making an
adverse credibility finding, and the Board of Immigration
Appeals (“BIA”) affirmed the IJ’s decision. Djondo now
petitions for review, arguing that the BIA’s decision is not
supported by the record and the BIA failed to follow the
requirements of the REAL ID Act. For the reasons that follow,
we deny the petition for review.
I.
A.
Djondo is a native and citizen of Togo who entered the
United States in April 2005. Djondo filed her application for
asylum, withholding of removal, and protection under CAT on
August 24, 2005, alleging that she had been persecuted in her
home country for her political beliefs.
Togo had been under the control of General Gnassingbe
Eyadema from 1967 until his death in 2005. While General
Eyadema was in power, Djondo worked to bring political change in
Togo as a member of the opposition political party, the
2
Convention Democratique des Peuples Africains (“CDPA”). When
General Eyadema died on February 5, 2005, his son, Faure
Gnassingbe, was installed as Togo’s next president by the Rally
of the Togolese People (“RTP”), the political party of his
father. Faure Gnassingbe stepped down under international
pressure on February 25. According to reports from the State
Department and Amnesty International, two days later, on
February 27, in response to the political upheaval in the
country, a women’s group that was part of the CDPA held a
protest in Lome, Togo, during which the participants wore red.
This rally was broken up when RTP security forces attacked the
protestors, eventually resulting in five deaths.
B.
Djondo’s application was based on her claim that she was
attacked at this red-shirt rally in Lome. In her written
application and in her testimony before the IJ, Djondo stated
that she participated in the red-shirt rally and that after RTP
security forces broke up the rally, they spotted her and
attacked her, causing her to lose consciousness for a short
time. According to Djondo, she eventually was assisted to her
cousin’s house, and her cousin took her to the hospital for
treatment. Djondo then returned to her cousin’s house to hide
from the security forces. Throughout her written and oral
3
testimony, Djondo gave February 20 as the date of the rally
where she was attacked.
In addition to her own testimony, Djondo offered the
affidavit and testimony of her half-sister, Massan Gnininvi.
Gnininvi testified that the rally was on February 20, that
Djondo had attended the rally, and that, although Gnininvi was
not present when Djondo was attacked, Gnininvi heard that people
were beaten at the rally. Gnininvi’s affidavit provides a
similar account, including the February 20 date.
Djondo also offered written, unsworn statements from six
Togolese citizens. The statement from Edoh Komla, Djondo’s
cousin, states that Djondo came to his house after the rally and
hid there. Like Djondo and Gnininvi, he claims that the rally
at which Djondo was beaten took place on February 20. 1 Two
statements were from other members of the CDPA, who stated that
Djondo was beaten by security forces at a rally in which
participants wore red shirts. A statement from Djondo’s husband
claimed that Djondo was assaulted by security forces during a
march, but that statement does not specify which march, other
than saying the march was organized by women of the opposition
party. The fifth statement is from Djondo’s mother, who said
1
Of these six written statements, only this one provided a
specific date for the rally.
4
that Djondo had been a long-time opponent of the government.
Her mother’s statement did not discuss any details of the
protest in February 2005, other than saying it was “the last
straw that broke the camel[’]s back.” J.A. 685. The sixth and
final statement was from the man who helped Djondo get to the
United States; it said nothing specific about a rally in
February 2005.
Finally, Djondo offered photographs of the rally, her CDPA
membership card, and an attestation of her CDPA membership. She
also included country reports on Togo from the State Department
and Amnesty International.
C.
The IJ rejected Djondo’s application. 2 The IJ found that
the evidence showed that Djondo was a member of the CDPA but did
not support a credible claim that she was entitled to the relief
she sought. Applying the REAL ID Act, 8 U.S.C. §
1158(b)(1)(B)(iii), the IJ stated that Djondo’s “claim is not
consistent with the evidence that she provided on country
conditions” and that there was a “discrepancy which relates to
2
This was the second time the IJ had rejected Djondo’s
claim. The first time Djondo’s application was denied, the IJ
refused to consider the documentary evidence because the
translation certifications did not comply with applicable rules.
Djondo appealed, and the BIA remanded the case with instructions
to consider that evidence.
5
[Djondo’s] claim of having been arrested and detained during the
course of the march that she described as having occurred on
February 20, 2005.” J.A. 14. The IJ did not find credible
Djondo’s explanation that she forgot or could not remember the
correct date. Regarding the supporting documents, the IJ noted
that one document used the same incorrect date—February 20,
2005—for the red-shirt rally and that the other documents lacked
specifics about the rally at which Djondo claimed she was
attacked. The IJ likewise decided that the photographs of the
rally were insufficient because Djondo could not be seen in
them.
The BIA affirmed the IJ’s decision. The BIA, also applying
the REAL ID Act, upheld the IJ’s credibility determination. It
noted that Djondo’s testimony and written application, as well
as Gnininvi’s testimony and affidavit and Edoh Komla’s letter,
all used the same incorrect date of February 20, 2005. The BIA
also upheld the IJ’s determination that the other evidence did
not support Djondo’s claim, concluding that the evidence was
“insufficient to bolster [Djondo’s] already questionable version
of events.” J.A. 5.
II.
Djondo now petitions for review of the denial of her claim
for asylum, withholding of removal, and protection under CAT.
6
When reviewing the BIA’s decision, we must uphold the decision
so long as it is not “manifestly contrary to law.” 8 U.S.C. §
1252(b)(4)(C). Thus, we must accept the BIA’s decision unless
the evidence “compels” a contrary conclusion. Dankam v.
Gonzales, 495 F.3d 113, 119 (4th Cir. 2007) (quoting I.N.S. v.
Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992)) (emphasis in
original).
An IJ’s determination of a witness’s credibility is
governed by the REAL ID Act, which provides:
Considering the totality of the circumstances, and all
relevant factors, a trier of fact may base a
credibility determination on the demeanor, candor, or
responsiveness of the applicant or witness, the
inherent plausibility of the applicant’s or witness’s
account, the consistency between the applicant’s or
witness’s written and oral statements (whenever made
and whether or not under oath, and considering the
circumstances under which the statements were made),
the internal consistency of each such statement, the
consistency of such statements with other evidence of
record (including the reports of the Department of
State on country conditions), and any inaccuracies or
falsehoods in such statements, without regard to
whether an inconsistency, inaccuracy, or falsehood
goes to the heart of the applicant’s claim, or any
other relevant factor.
8 U.S.C. § 1158(b)(1)(B)(iii). The IJ’s findings that an
applicant was not credible are “entitled to judicial deference
if such findings are supported by substantial evidence.”
Dankam, 495 F.3d at 119.
Although the IJ’s findings of fact are given broad
deference, that deference is not absolute. Camara v. Ashcroft,
7
378 F.3d 361, 367 (4th Cir. 2004). For the court to uphold a
decision that the witness was not credible, an IJ “should offer
a specific, cogent reason for [her] disbelief.” Id. “Examples
of specific and cogent reasons include inconsistent statements,
contradictory evidence, and inherently improbable testimony; [in
particular,] where these circumstances exist in view of the
background evidence on country conditions, it is appropriate for
an Immigration Judge to make an adverse credibility
determination on such a basis.” Tewabe v. Gonzales, 446 F.3d
533, 538 (4th Cir. 2006) (alteration in original) (internal
quotation mark omitted). On the other hand, that determination
may not be based on “speculation, conjecture, or an otherwise
unsupported personal opinion.” Id. (quoting Dia v. Ashcroft,
353 F.3d 228, 250 (3d Cir. 2003) (en banc)).
The Immigration and Nationality Act (“INA”) authorizes the
Attorney General to grant asylum to an alien who qualifies as a
refugee under 8 U.S.C. § 1101(a)(42)(A). 8 U.S.C. §
1158(b)(1)(A); see also Dankam, 495 F.3d at 115. A refugee is
“someone ‘who is unable or unwilling to return to’ [her] native
country ‘because of persecution or a well-founded fear of
persecution on account of . . . political opinion’ or other
protected grounds.” Id. (quoting 8 U.S.C. § 1101(a)(42)(A))
(omission in original). Proving a well-founded fear of
persecution has both a subjective and an objective component.
8
Camara, 378 F.3d at 369. Alternatively, if a petitioner can
show past persecution, a presumption of a well-founded fear
arises. Id. at 369–70. Thus, even if the trier of fact has
determined that the petitioner’s testimony is not credible, the
BIA must consider independent evidence of past persecution.
Anim v. Mukasey, 535 F.3d 243, 252 (4th Cir. 2008). The person
seeking asylum has the burden of showing that she meets these
requirements. Djadjou v. Holder, 662 F.3d 265, 272 (4th Cir.
2011).
The INA also provides for the withholding of removal. 8
U.S.C. § 1231(b)(3). The burden for prevailing on this claim is
higher than under an asylum claim because to succeed on the
withholding claim, the petitioner must “demonstrate a ‘clear
probability of persecution’ on account of a protected ground.”
Dankam, 495 F.3d at 115 (quoting INS v. Stevic, 467 U.S. 407,
430 (1984)). Protected grounds include “race, religion,
nationality, membership in a particular social group, or
political opinion.” Haoua v. Gonzales, 472 F.3d 227, 232 (4th
Cir. 2007) (citing 8 U.S.C. § 1231(b)(3)(A)). Because the
burden of proof for withholding of removal is higher than for
asylum, an applicant who is ineligible for asylum is necessarily
ineligible for withholding of removal. Camara, 378 F.3d at 367.
If a person meets this higher burden, however, relief is
mandatory. Id.9
The CAT “prohibits the United States from returning any
person to a country where the person has demonstrated that it is
more likely than not that [s]he will be tortured if returned to
such country.” Zelaya v. Holder, 668 F.3d 159, 161 (4th Cir.
2012). The reason that the person would be tortured is
irrelevant; all that matters is that the person has shown that
torture is more likely than not, Dankam, 495 F.3d at 115–16,
applying an objective standard, Camara, 378 F.3d at 371. As
with asylum and withholding of removal claims, the petitioner
bears the burden of showing these requirements are met. 8
C.F.R. § 208.16(c)(2).
III.
Djondo argues that the record does not support the BIA’s
decision and that the BIA did not follow the REAL ID Act in
making the adverse credibility determination, but we disagree.
Applying these standards, we conclude that the record contains
substantial evidence to uphold the BIA’s decision.
The BIA rejected Djondo’s assertion that the simple mistake
of one date was the basis for the adverse credibility
determination. Instead, the BIA noted that the mistaken date
appears not only in Djondo’s testimony and written application,
but also in Gnininvi’s testimony and affidavit and in the
statement from Edoh Komla. Far from being a one-time mistake,
10
this repeated error was the only specific date that Djondo
offered for the date of the rally in any of the oral or written
evidence from people who claimed to have firsthand knowledge of
events. This error—from Djondo, Gnininvi, and Komla—directly
conflicted with the date of the rally noted in reports from the
State Department and Amnesty International, which the IJ found
“far more probative.” 3 J.A. 300–01. The IJ asked Djondo about
this mistake, and the IJ did not credit her answer that she
simply forgot or could not remember. J.A. 4, 14–16. Given that
the IJ heard Djondo’s testimony and explanation for the
incorrect date, the IJ’s rejection of that explanation deserves
great deference. See Concrete Pipe & Products of Cal., Inc. v.
Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 623
(1993) (noting that “the factfinder is in a better position to
make judgments about . . . . the credibility of a live
witness”).
In addition, in reaching its adverse credibility
determination, the BIA fully complied with the requirements of
the REAL ID Act. The BIA and the IJ both expressly cited the
3
Djondo’s evidence raises other questions as well. For
instance, Djondo testified that after she arrived at her
cousin’s house, her cousin took her to the hospital. J.A. 592.
Her cousin, however, never mentioned any trip to the hospital in
his written statement; instead, he said that he had to “hide
her” in his house “to save her.” J.A. 678.
11
REAL ID Act and noted that their decisions were based on “the
totality of the circumstances.” J.A. 4, 14. The BIA was not
required to discuss—or even list—every factor in the REAL ID Act
in discussing Djondo’s credibility. Cf. Zuh v. Mukasey, 547
F.3d 504, 511 (4th Cir. 2008) (holding, in the context of the
BIA exercising its discretion in denying asylum to an alien
qualifying as a refugee, that “an IJ need not analyze or even
list every factor”). Djondo contends that the BIA should have
responded to more of her arguments about why her testimony was
credible, but the REAL ID Act imposes no such requirement. The
REAL ID Act merely requires that the BIA’s decision be based on
the totality of the circumstances and all relevant factors.
The BIA and the IJ based their decisions on that standard, J.A.
4, 14, and in their decisions, both discussed the evidence and
factors on which their conclusion was based. 4 They gave a cogent
reason—the repeated wrong date—as the basis for the decision.
4
In Zuh, we noted that when the BIA decides, in its
discretion, to deny asylum to a qualifying refugee, the IJ “must
discuss the positive or adverse factors that support his or her
decision.” Zuh, 547 F.3d at 511. Djondo argues that this
language required the IJ to discuss the factors that suggested
her claim was credible. The language on which Djondo relies
does not compel such a result: that language uses “or,” meaning
that the IJ need not discuss both positive and adverse factors;
rather, the IJ need only discuss the factors that support the
decision. So long as the record demonstrates that the IJ
considered the relevant factors, the IJ has met her obligations.
See id. Here, the BIA and IJ did just that. J.A. 4, 14.
12
See Tewabe, 446 F.3d at 538. The decision therefore satisfied
the requirements of the REAL ID Act.
Despite Djondo’s assertion to the contrary, the BIA did not
need to explain why this erroneous date was material. 5 Before
Congress passed the REAL ID Act in 2005, “contradictions that
[did] not go to the heart of the applicant’s claim . . . [did]
not necessarily support an adverse credibility determination.”
Djadjou, 662 F.3d at 274. The REAL ID Act, however, changed
this standard, removing this materiality requirement and thus
allowing any inconsistency or inaccuracy, “without regard for
whether [it] goes to the heart of the applicant’s claim,” to
serve as the basis of an adverse credibility determination. 8
U.S.C. § 1158(b)(1)(B)(iii); see also Singh v. Holder, - F.3d -
(4th Cir. 2012) (recognizing this change resulting from the REAL
ID Act). Here, the BIA relied on the same repeated use of the
wrong date for the rally as the basis for the adverse
credibility determination. The REAL ID Act allows the BIA to
5
The mistaken date is, in any event, likely very material.
Djondo claimed the rally was designed to push Faure Gnassingbe
to step down after his extraconstitutional installation as
president. J.A. 623. On February 20, 2005, this purpose would
have made sense, as Faure Gnassingbe was still in power. On
February 27, 2005, however, this purpose would not have made
sense because Faure Gnassingbe had stepped down two days
earlier, on February 25.
13
make the adverse credibility determination based on this error,
whether or not it went to the heart of Djondo’s claim.
In addition to the repeated error about the date, the BIA
also considered and rejected the other evidence that Djondo
presented. See Camara, 378 F.3d at 369–70 (noting that although
an adverse credibility determination is often “fatal” to an
asylum claim, such a finding is not necessarily fatal if the
other evidence can demonstrate past persecution). In this case,
the letter attesting to Djondo’s CDPA membership never mentioned
any persecution, despite being obtained for purposes of Djondo’s
asylum claim. J.A. 5, 646. The letters from Togolese citizens
offered little or no specifics about the rally at which Djondo
claimed she was beaten. J.A. 16–17, 653–87. The photographs
did not show Djondo in the crowd. J.A. 5, 703–04. The BIA thus
sufficiently considered and rejected this evidence in evaluating
Djondo’s application. See Ganziami-Mickhou v. Gonzales, 445
F.3d 351, 358 (4th Cir. 2006) (holding that the IJ does not need
to “discuss each item’s individual worth” in rejecting these
documents as incredible, so long as the IJ did not ignore them).
Because Djondo offered the same evidence in support of all
three claims, the rejection of her evidence for purposes of one
claim means that the evidence must be rejected for all claims.
See Zuh, 547 F.3d at 513 (“An IJ cannot have it both ways,
finding an applicant and [her] documents incredible for one
14
purpose and yet relying on them for another.”). Thus, Djondo’s
claims for asylum, withholding of removal, and protection under
CAT all fail.
IV.
Ultimately, Djondo’s evidence does not compel us to reach a
result contrary to the BIA’s conclusion. Regardless of whether
another factfinder would have found Djondo’s claim credible, the
BIA found that Djondo was incredible and had not carried her
burden to show that she was entitled to asylum, withholding of
removal, and protection under CAT. The record contains
substantial evidence to support that conclusion. Therefore, we
affirm the BIA’s decision and deny the petition for review.
PETITION FOR REVIEW DENIED
15
DAVIS, Circuit Judge, dissenting:
For the reasons set forth within, I respectfully dissent.
I.
Akouavi Dovi Djondo 1 is a 56-year-old woman from Togo, which
was ruled for 38 years by Gnassingbe Eyadema (“Eyadema”) until
his death on February 5, 2005. According to the U.S. Department
of State, following “constitutional changes” and “quick action
by the military,” Gnassingbe’s son, Faure Gnassingbe (“Faure”),
was installed as the new president. J.A. 706. On February 7,
2005, the Togo government “banned all street demonstrations for
two months in observance of a national mourning period for the
late president Eyadema.” Id. at 713. Although the ban was
purportedly lifted on February 18, 2005, on February 27
“security forces forcefully dispersed a peaceful women’s march,
beating persons with batons and firing tear gas into the
crowds.” Id. Five people were killed, and when their bodies were
1
The parties spell the petitioner’s first name as
Akouavidovi, and that is how it is spelled on the docket. Her
affidavit and application for asylum and withholding of removal,
however, list her first name as Akouavi and her middle name as
Dovi. See J.A. 179, 621.
16
found, they “had contusions consistent with having suffered
beatings from batons.” 2
Djondo came to the United States on April 15, 2005, and on
August 5, 2005, filed an application seeking asylum and
withholding of removal based on political persecution and
membership in a particular social group, as well as withholding
of removal under the Convention against Torture (the “CAT”). The
Immigration Judge (“IJ”) denied relief, and the Board of
2
J.A. 713. This is how the State Department describes the
events in Togo surrounding the women’s march that Djondo claims
she participated in, and is at the core of her claim:
On February 5, 2005 President Gnassingbe Eyadema
died. In an unconstitutional move, the military
leadership swore in Faure Gnassingbe, the late
President Eyadema’s son, as president. Immediate
condemnation by African leaders followed by sanctions
of the Economic Community of West African States and
the African Union combined with pressure from the
international community led finally to a decision on
February 25 for Faure Gnassingbe to step down. Protest
efforts by the public included a large demonstration
in Lome [the capital of Togo] that was permitted to
proceed peacefully. Prior to stepping down, Faure
Gnassingbe was selected as leader of the ruling party
and named as a candidate in the announced presidential
elections to choose a successor to Eyadema. Abass
Bonfoh, National Assembly Vice President, was selected
to serve as Speaker of the National Assembly and
therefore simultaneously became interim President.
Real power apparently was retained by Faure Gnassingbe
as he continued to use the offices of the President
while the interim President operated from the National
Assembly.
Background Note: Togo (February 17, 2012), http://www.state.gov/
outofdate/bgn/togo/196489.htm (last visited October 17, 2012).
17
Immigration Appeals (“BIA”) affirmed. In my view, the record
before us, taken as a whole in its full sweep, compels us to
reject the IJ’s adverse credibility determination as lacking a
cogent foundation. Accordingly, I would grant the petition and
remand the proceedings.
A. Djondo’s Affidavit
In the affidavit attached to her asylum application, Djondo
explained that her family had long been “strongly involved in
politics.” J.A. 752. Prior to Eyadema’s coup in 1967, Djondo’s
father had “actively participated” in Togo’s struggle for
independence in the 1950s and early 1960s, and after Eyadema
came to power was persecuted by the regime. Id. In 1976, Djondo
and other youths were “savagely beaten” and arrested after
opposing government efforts to interfere with a ceremony of the
Catholic Church. Id. Her half brother Leopold Messan Gnininvi
served as Secretary General of the Convention Démocratique des
Peuples Africains (“CDPA”), an opposition party. Id. at 586–87.
Djondo elevated her political involvement in 1990, when
Togo was “at the edge of the civil war.” J.A. 753. She “strongly
believed” the country would be “freed from the tyranny,” and
“secretly joined” the CDPA. Id. In January 1993, she
participated in a “big demonstration” to welcome a delegation
from the European Union. Id. “Unfortunately, militaries came to
disrupt the crowd using their machine[] guns. Many were killed
18
and other[s] w[ere] wounded. [She] was also beaten and injured.”
Id. That experience deterred her from more political involvement
for a number of years. Id.
Initially her work for the CDPA was on an informal basis.
See J.A. 753. In 2002, however, she became “an official member
of CDPA,” of which Leopold Gnininvi had become Secretary
General. Id. at 586. In May 2002 she became a “counselor for the
national CDPA’s women wing,” and was “the local chapter’s vice-
president.” Id. at 754. At the time, they worked to support the
opposition to Eyadema, leading up to an election scheduled for
June 2003. Id. In 2003, however, “everything turn[ed] to a
disaster.” Id. She had to “move from [her] area to stay in [her]
husband[’s] second house in Hedzranawoe for future reprisal or a
persecution.” Id.
In 2005, upon Eyadema’s death, she and others thought
things would change such that they would be “free to talk
freely.” J.A. 754. Accordingly, “women of the opposition
organized a march to ask[] the son of late EYADEMA to step down
and put Mr. NATCHABA 3 in the presidency according to our
constitution.” Id. In the affidavit, Djondo stated that the
3
Natchaba Ouattara was the president of the National
Assembly at the time of Eyadema’s death. See United Nations High
Commissioner for Refugees, “World Directory of Minorities and
Indigenous Peoples – Togo: Overview,”
www.unhcr.org/refworld/publisher,MRGI,,TGO,4954ce5cc,0.html
(last visited October 26, 2012).
19
march was on February 20th. Id. She explained that she was
“beaten savagely” by “RPT 4 militia loyal to Faure” for being “a
participant of that march.” Id. The militia “came directly to
[her] house” and “threat[ened]” her. Id. “It was very hard for
me to live in that fear,” she explained, “so I left the country
before the April 24th election.” Id. She first went to a refugee
camp in Benin, and then came to the United States. See id.
Djondo “decided to stay here for fear [of] persecution since the
Gnassingbe [were] still in the power.” Id. She said, “I cannot
go back to my country because we have a hereditary
dictator[ship] that kills us morally and physically.” Id.
B. Djondo’s Testimony
On October 25, 2005, the Department of Homeland Security
(“DHS”) initiated removal proceedings, charging her with being
subject to removal for having overstayed the visa. See
Immigration and Nationality Act (“INA”) § 237(a)(1)(B), 8 U.S.C.
§ 1227(a)(1)(B). On September 20, 2006, Djondo appeared with
counsel before an immigration judge, conceded removability,
renewed her asylum application under INA § 208(a), 8 U.S.C. §
1158(a), and also requested withholding of removal under INA §
241(b)(3), 8 U.S.C. § 1231(b)(3), and CAT protection. As the
4
The Rassemblement du People Togolais (“RPT”) is Eyadema’s
party. See Background Note, supra note 2.
20
Attorney General concedes, at the hearing Djondo “testified
consistently with her written affidavit.” Gov’t Br. at 4; see
J.A. 534-618 (hearing transcript). She explained that she had
been involved with the CDPA “from the beginning,” although she
did not “officially” join the party until 2002, at which point
she “got a membership card.” Id. at 587. She explained that she
participated in a march on February 20, 2005, with the
“opposition components.” Id. at 586, 589-91. “We were requesting
the . . . reinstallation of the constitution, that Eyadema’s son
[Faure] cannot become just the president after the death of his
father,” she testified. Id. at 590. “Everybody was wearing the
red t-shirt,” she explained, id. at 602-03, because “[i]t means
that the country is in danger”; that was “our way to show our
discontent,” id. at 591.
Djondo testified that the march began as a peaceful
demonstration, but the RPT militia “made it a point to attack
anyone wearing a red shirt coming from that demonstration.” J.A.
591-92, 603. She knew that they were RPT militiamen because they
were her neighbors, and they also wore “t-shirts with the RPT
logo.” Id. at 591-92, 605. They chased her, “attacked” her, and
beat her with “big sticks,” clubs and bats, leaving her
unconscious. Id. at 591. Passersby found her and brought her to
21
her cousin’s home. Id. at 591-92, 610. Her cousin took her to a
hospital for medical treatment. 5
The immigration judge specifically asked her the date of
the march:
Q: When were you beaten up?
A: I was beaten up on February 20th.
Q: February 20th?
A: February 20th.
J.A. 589. The date of the march became crucial because DHS
counsel pointed out to the IJ that, of the demonstrations
described in the State Department reports, none of them occurred
on February 20. The judge confronted Djondo with this
information:
There are some reports attached to your asylum papers,
which tell me what was happening in Togo in February
of 2005. One report talks about protesters and
demonstrations in Lome. And the dates they give for
those protests are February 9th, February 11th,
February 12th and February 27th. . . . [T]hey say that
the February 27th . . . march was a peaceful women’s
march. . . . [T]he next report . . . refers to
demonstrations that were organized for February 23rd,
2005. And it refers to a February 27th, 2005, march
organized by women’s organizations. And it says that
the organizers of this march, organized by the women’s
5
J.A. 592. Djondo did not produce records of her medical
treatment. When asked why, she explained that, when she went to
the hospital on “February 20th,” she “was given only the first
care and prescription. I received no other document.” Id. at
601. She explained that she did not try to acquire them later
because she “[did] not know that the proceeding would require
the presentation of these documents.” Id. at 601-02.
22
organizations, asked the population to dress in red.
And I don’t see any reference to a February 20th,
2005, women’s march. Do you know why that would be in
two different reports?
Id. at 603-04. She responded:
Yeah. I took part in the one requesting the
demonstrators to wear red shirts. And when the attack
took place, maybe I can’t remember exactly the dates.
But the one requesting the participants to wear red
shirts is the one I took part in. . . . [A]fter what’s
happened to me, I can’t remember exactly the date. I
know that it was in the 20’s, and I was saying the
20th. But I took part in the one [where] we were
requested to wear red shirts.
Id. at 604-05.
Djondo testified that, after the march, she was unable to
go home because she was scared the militia would arrest or kill
her. J.A. 596. In fact, she later learned that the RPT militia
did go “back to the house . . . to look for [her].” Id.
Accordingly, she “tried to . . . leave the country,” but
“unfortunately, [her] passport [had] expired.” Id. at 589. She
stayed with her cousin until she was able to acquire a passport,
and left the country for Benin approximately two months later,
on April 14, 2005. Id. at 589, 592, 595. Djondo’s husband and
children also were forced to leave their home, and fled to Benin
sometime after Djondo did. Id. at 594-95.
Djondo testified that she is afraid to return to Togo
because she is “still scared that [she’ll] be arrested.” J.A.
588. Her sister who remained in Togo told her “[t]hey continue
23
looking for [her].” Id. at 607. Djondo explained, “If I go back
to Togo, they will kill me immediately. And I’m, I’m scared. I’m
afraid.” Id. at 597. And “if I go back [and] they find out that
I came to the United States and applied [for] asylum, . . .
they’re going to arrest me or kill me.” 6
C. Djondo’s Documentary Evidence
Djondo also submitted documentary evidence to corroborate
her affidavit and oral testimony about her involvement in the
CDPA and the February 2005 women’s march:
(1) two photographs of the demonstration in which she
claimed to have participated, J.A. 703-04;
(2) a CDPA Membership Card, confirming her membership in
CDPA, id. at 642-44; and
(3) the attestation of CDPA Membership from a CDPA
official, stating that Djondo is “is a very active
member in the affairs of the party,” id. at 646-47.
Djondo also submitted reports from the State Department and
Amnesty International about the February 2005 march. The State
6
J.A. 599. The DHS lawyer asked why Leopold Gnininvi, a
prominent leader, could stay in Togo but conditions were too
dangerous for Djondo to return. Id. at 587. Djondo explained,
“[T]hey who are the top leaders of the opposition parties – they
don’t harm them. . . . [T]hey always focus on people around,
around them.” Id. The DHS lawyer asked why another sibling can
safely live in Togo. Id. at 589. “[S]he’s not at all involved in
political activities,” Djondo explained. Id.
24
Department’s 2005 Country Report for Togo described the
demonstration as follows:
On February 27, security forces forcefully dispersed a
peaceful women’s march, beating persons with batons
and firing tear gas into crowds. Five persons were
killed in the course of this demonstration . . . . All
of the bodies had contusions consistent with having
suffered beatings from batons.
J.A. 713. Amnesty International provided more detail in its
report, “Togo, A High Risk Transition”:
On the following Sunday, 27 February 2005, a march
organised by women’s organisations took place in Lomé.
The organisers asked the population to dress in red,
to symbolise that democracy was in danger in Togo.
There were clashes between security forces and several
demonstrators at the end of the demonstration. The
security forces chased some demonstrators into the Bè
neighbourhood, a traditional opposition stronghold. It
seems that these demonstrators erected barricades and
that clashes took place right through until the
following morning, when the security forces began
indiscriminate repression of people in the
neighbourhood, forcibly entering homes, beating up
anyone in their way and, according to some reports,
making threats of rape. . . .
The next day, five bodies, including a child aged
around 10, were found in Bè Lagoon. . . .
On 28 February, the security forces forcibly entered
private homes and hit residents in a brutal and
indiscriminate manner. . . .
J.A. 737-38 (emphases omitted). As discussed below, the only
inconsistency between these reports and Djondo’s testimony was
the date of the march (February 20 vs. February 27).
D. Djondo’s Other Evidence
Djondo presented other evidence in support of her petition:
25
Testimony of Lily Massan Gnininvi (J.A. 557-84) – Djondo’s
half-sister Lily Massan Gnininvi testified about Djondo’s active
participation in the CDPA and personal background, as well as
Djondo’s participation in the February 2005 march. J.A. 560-62.
Although Gnininvi was not with Djondo when Djondo was beaten,
Gnininvi described the demonstration in detail, and testified
that she saw Djondo at the demonstration. Id. at 562-66. She
also testified that she heard from another sister that Djondo
had been beaten. Id. at 566, 569. Thus, her testimony was
entirely consistent with Djondo’s. She did, however, testify
that the march was February 20, not February 27 as reported by
the State Department and Amnesty International.
Affidavit of Lily Massan Gnininvi (J.A. 651) – This was
consistent with Gnininvi’s testimony.
Written statements by Togolese citizens – Djondo submitted
six written, unsworn statements from people who stated that
Djondo participated in the red-shirt rally and was, for example,
“savagely beaten” because the RPT militia “saw her in red
attire.” J.A. 665. All but one of the statements did not provide
a precise date for the rally. See id. at 671-75 (Abotchi
Akossiwa Odile ); id. at 665-69 (Dotse Ama Eyako); J.A. 660-63
(Gayegnigogo Kuevidjin); id. at 653-58 (Agbemehe Akoétey Kossi);
id. at 685-87 (Djondo Ablavi). The one person who included a
26
precise date stated that the march took place on February 20,
2005. See id. at 677-82 (Edoh Semeho Komla).
E. Agency Proceedings
At the hearing before Immigration Judge Lisa Dornell,
Djondo argued that she satisfied the requirements for asylum.
Although the Attorney General did not dispute most of the facts,
he argued that Djondo’s claim failed because “it’s difficult to
believe that five years later that she is in danger because of
some mass march activity that she was involved in such a long
time ago.” J.A. 616.
The IJ orally rejected Djondo’s claim for asylum and
withholding of removal. This decision relied, however, on her
earlier decision to exclude from evidence all of the written
statements that Djondo submitted as well as the CDPA membership
card, on the ground that the certificates of translation
provided for those documents did not state that the translator
was competent to translate the document and that the translation
was true and accurate. J.A. 514. Having excluded that evidence,
the IJ explained, in pertinent part, why she was rejecting
Djondo’s claims:
[T]his is not a case in which the respondent can rely
on her testimony alone. That is because her testimony
concerning the events which led to her departure from
Togo is not consistent [with the State Department and
Amnesty International reports]. It is not plausible in
light of information on country conditions. . . .
27
[I have] considered the respondent’s explanation that
she simply forgot the date or that she could not
remember the date. That explanation is not persuasive
in light of the fact that that is the date that the
respondent has written in her application. . . .
Even more significant is the fact that [Gnininvi]
insisted that [the march] occurred on February 20,
2005. There is no explanation as to, even if the
respondent were mistaken, why her witness would come
in and swear under oath that it was on February 20,
2005, that she saw the respondent participating in
this demonstration which ultimately led to her
decision to flee Togo.[7]
So, the respondent cannot rely on her testimony . . .
Id. at 520-21. The IJ also noted that, even if the excluded
evidence were admitted, it “would not have been deemed by the
Court to be credible” because they also contained “conflicting
information about the demonstration.” Id. at 522. 8
Djondo appealed to the BIA, which reversed in a per curiam
opinion on two grounds. First, the BIA held that the IJ
improperly excluded most of Djondo’s witness statements, because
7
As Djondo notes:
The Immigration Judge’s reliance on Ms. Gnininvi’s
failure to explain why she testified that the
demonstration was on February 20 is puzzling, given
that no one asked Ms. Gnininvi to provide such an
explanation. Ms. Gnininvi testified before Ms. Djondo,
and the discrepancy in dates was not raised by the
Immigration Judge until she questioned Ms. Djondo. See
J.A. 603-04. Nor did counsel for the DHS ever ask Ms.
Gninninvi to explain the difference.
Pet. Br. at 24.
8
As mentioned, this was incorrect; only one of the written
statements included the February 20 date.
28
the translator certificates “substantially complied” with the
applicable regulation, 8 C.F.R. § 1003.33. J.A. 143. Second, the
BIA held that the IJ “failed to analyze the respondent’s
applications under the REAL ID Act of 2005.” Id. The BIA
remanded for the IJ to reconsider her credibility finding in
light of the previously excluded documentary evidence, and under
the REAL ID Act. Id. at 143–44.
On remand, Djondo moved for permission to have her
application considered de novo. See J.A. 101. The IJ denied the
motion, instead ruling on the application without hearing
additional evidence. Id. at 101. Reaching the merits, the IJ
again denied Djondo’s claims:
[T]he Court observes that previously-excluded evidence
supports the respondent’s claim that she was a member
of the CDPA. . . .
However, even considering the previously-excluded
evidence, and taking into consideration the totality
of the circumstances as the Real ID Act requires, the
respondent has not advanced a claim that is credible.
This is an adverse credibility claim. There is a
material discrepancy which relates to the respondent’s
claim of having been arrested and detained during the
course of a march that she described as having
occurred on February 20, 2005. This is a case, in
short, in which the respondent’s claim is not
consistent with evidence that she has provided on
country conditions. This is a case in which the
respondent’s testimony is not consistent with
testimony provided by her own witness[.][9] [T]he Court
notes that in the respondent’s filings subsequent to
9
This observation is wrong. Gnininvi testified to the same
(mistaken) date of the march as did Djondo: February 20, 2005.
29
the remand, she notes that asylum applicants come to
the Court suffering from some degree of trauma.
However, the Court observes that notwithstanding the
trauma that applicants for asylum protection may have
suffered, they still are responsible for carrying
various legal burdens. They have to file their asylum
application in a timely fashion. They have to present
evidence that is credible, direct and specific.
And the Court observes that in this case,
specifically, there is certainly no evidence to show
that the respondent has been so traumatized that she
cannot testify, cannot be expected to testify, in a
manner that is consistent with her own evidence. . . .
Id. at 90-91 (emphasis added). The IJ then addressed the
previously excluded documents, but discounted their weight,
stating that Gandziami-Mickhou v. Gonzales, 445 F.3d 351 (4th
Cir. 2006), “calls into question the probative value of such
unsworn documentation.” Id. at 92. For these reasons, the IJ
concluded, Djondo “has not shown with her evidence that she,
herself, was involved in that activity [the February 27, 2005,
women’s march] at the time that her information on country
conditions says those activities occurred.” Id. at 93.
On appeal, the BIA affirmed. First, the BIA affirmed the
IJ’s adverse credibility determination, finding it complied with
the REAL ID Act:
Contrary to the respondent’s assertion that it was
only her faulty recollection of one date that formed
the basis of the Immigration Judge’s adverse
credibility finding, it was the faulty date repeated
in her testimony, her written application, her
witness’s testimony, and her various corroborating
letters that concerned the Immigration Judge. . . .
30
When the respondent was confronted with this
inconsistency, she stated she simply forgot the date
or could not remember the date, which was not a
convicting explanation to the Immigration Judge. The
Immigration Judge was not persuaded that [Djondo]
simply forgot or could not remember when this was also
the date in her written application, the date her
witness testified she saw the respondent participating
in the demonstration that led to her arrest and
decision to flee Togo, and the date reflected in her
other allegedly corroborating letters that the
respondent appeared at this rally on February 20,
2005, and fled from the militia on that day.
J.A. 4 (citations to record omitted). Second, the BIA affirmed
the IJ’s decision that Djondo’s supporting documentation also
was insufficient to satisfy her burden of showing past
persecution, a reasonable likelihood of future persecution on
account of a protected ground, or a clear probability that her
life or freedom would be threated on account of a protected
ground if she were to return to Togo:
[T]he political membership document and letter from
her political organization do not describe any
incidents of harm or persecution suffered by the
respondent in Togo. The Immigration Judge thought that
had the writer of the letter known of instances of
persecution and harm that it would have been reflected
in the letter. Furthermore, the photos and other
documentation that she produced were insufficient to
bolster her already questionable version of events.
For instance, her pictures did not necessarily
corroborate the time or place of the event recorded
and many of her documents were not under oath. See
Gandziami-Mickhou v. Gonzales, 445 F.3d 351[, 354]
(4th Cir. 2006) (discussing the limited probative
value of unsworn documentation).
Id. at 5 (citations to record omitted). Accordingly, the BIA
found no “clear error in the determination that the respondent
31
was not credible,” and thus that she “failed to carry her burden
for demonstrating eligibility for asylum or withholding of
removal.” Id. Thus, the BIA affirmed the IJ’s denial of Djondo’s
claims for asylum, withholding of removal, and CAT relief.
Djondo timely filed a petition for review.
II.
A.
We recently described the standards for asylum, mandatory
withholding of removal, and protection under CAT:
Under the Immigration and Nationality Act (the
INA), the Attorney General has discretionary authority
to “grant asylum to an alien . . . if . . . the
Attorney General determines that such alien is a
refugee within the meaning of section 1101(a)(42)(A)
of [Title 8].” 8 U.S.C. § 1158(b)(1)(A). Section
1101(a)(42)(A) in turn defines the term “refugee” as
“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 . . . of the protection of, that country
because of persecution or a well-founded fear of
persecution on account of . . . membership in a
particular social group. . . .” Id. § 1101(a)(42)(A).
“The burden of proof is on the applicant [for asylum]
to establish that the applicant is a refugee, within
the meaning of section 1101(a)(42)(A).” Id. §
[10]
1158(b)(1)(B).
10
An asylum applicant “may qualify as a refugee either
because he or she has suffered past persecution or because he or
she has a well-founded fear of future persecution.” 8 C.F.R. §
208.13(b). Further, “[a]n applicant who demonstrates that [s]he
was the subject of past persecution is presumed to have a well-
founded fear of persecution.” Ngarurih v. Ashcroft, 371 F.3d
182, 187 (4th Cir. 2004).
32
Zelaya v. Holder, 668 F.3d 159, 161 (4th Cir. 2012) (alterations
in original). In addition, an application for asylum is “deemed
to constitute at the same time an application for withholding of
removal.” 8 C.F.R. § 208.3.
Unlike in the asylum context, if an alien qualifies
for withholding of removal under the INA, the Attorney
General cannot remove him to his native country. Id. §
1231(b)(3)(A); Camara v. Ashcroft, 378 F.3d 361, 367
(4th Cir. 2004). “Withholding of removal is available
under 8 U.S.C. § 1231(b)(3) if the alien shows that it
is more likely than not that h[is] life or freedom
would be threatened in the country of removal because
of h[is] ‘ . . . membership in a particular social
group . . . .’ ” Gomis v. Holder, 571 F.3d 353, 359
(4th Cir. 2009) (quoting 8 U.S.C. § 1231(b)(3)(A)),
cert. denied, ––– U.S. –––, 130 S.Ct. 1048 (2010).
This is a higher burden of proof than for an asylum
claim, although the facts that must be proven are the
same. Camara, 378 F.3d at 367. Accordingly, an alien
who cannot meet his burden of proof on an asylum claim
under the INA necessarily cannot meet his burden of
proof on a withholding of removal claim under the INA.
Id.Zelaya, 668 F.3d at 161 (alterations in original). Finally,
Djondo sought protection under the CAT, which
pursuant to its implementing regulations, prohibits
the United States from returning any person to a
country where the person has demonstrated that it is
more likely than not that he will be tortured if
returned to such country [citation omitted]. For
purposes of obtaining protection under the CAT in the
United States, torture is defined as:
any act by which severe pain or suffering,
whether physical or mental, is intentionally
inflicted on a person for such purposes as
obtaining from him or her or a third person
information or a confession, punishing him
or her for an act he or she or a third
33
person has committed or is suspected of
having committed, or intimidating or
coercing him or her or a third person, or
for any reason based on discrimination of
any kind, when such pain or suffering is
inflicted by or at the instigation of or
with the consent or acquiescence of a public
official or other person acting in an
official capacity.
8 C.F.R. §§ 208.18(a)(1) (Department of Homeland
Security regulation), 1208.18(a)(1) (Executive Office
for Immigration Review regulation). A public official
acquiesces to torture if, “prior to the activity
constituting torture, [the public official] ha[s]
awareness of such activity and thereafter breach[es]
his or her legal responsibility to intervene to
prevent such activity.” Id. § 1208.18(a)(7). “The
testimony of the applicant” for withholding of removal
under the CAT, “if credible, may be sufficient to
sustain the burden of proof without corroboration.”
Id. § 1208.16(c)(2).
Zelaya, 668 F.3d at 161-62 (footnotes omitted). “[T]his standard
for the CAT is independent from the standard for determining
asylum, and an adverse credibility finding alone cannot preclude
protection under the CAT.” Gandziami-Mickhou v. Gonzales, 445
F.3d 351, 354 (4th Cir. 2006) (citing Camara, 378 F.3d at 372).
B.
Here, the IJ rejected Djondo’s claims because, to the
extent that Djondo was relying on her own testimony, the
testimony was not credible, and to the extent that Djondo was
relying on other evidence, that evidence, in light of the
antecedent adverse credibility finding, also was not sufficient
to sustain her burden of proof. Djondo argues that we should
34
reverse the BIA’s decision for several reasons, including an
argument that the IJ committed legal error and/or clear factual
error in making the adverse credibility finding. The majority
sustains the adverse credibility determination; I am persuaded
to the contrary.
1.
“The testimony of the [asylum] applicant, if credible, may
be sufficient to sustain the burden of proof without
corroboration.” 8 C.F.R. § 208.13(a). The REAL ID Act, which
applies to all applications for asylum and withholding of
removal filed after May 11, 2005, provides guidance to
immigration judges in making credibility determinations:
Credibility determination[:] Considering the totality
of the circumstances, and all relevant factors, a
trier of fact may base a credibility determination on
the demeanor, candor, or responsiveness of the
applicant or witness, the inherent plausibility of the
applicant’s or witness’s account, the consistency
between the applicant’s or witness’s written and oral
statements (whenever made and whether or not under
oath, and considering the circumstances under which
the statements were made), the internal consistency of
each such statement, the consistency of such
statements with other evidence of record (including
the reports of the Department of State on country
conditions), and any inaccuracies or falsehoods in
such statements, without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the
heart of the applicant’s claim, or any other relevant
factor[.]
8 U.S.C. § 1158(b)(1)(B)(iii) (emphasis added).
35
We review credibility determinations to ensure they are
supported by substantial evidence, just as we did prior to the
passage of the REAL ID Act. Camara v. Ashcroft, 378 F.3d 361,
367 (4th Cir. 2004); see also Shrestha v. Holder, 590 F.3d 1034,
1 1042 (9th Cir. 2010) (“The REAL ID Act did not strip us of our
ability to rely on the institutional tools that we have
developed, such as the requirement that an agency provide
specific and cogent reasons supporting an adverse credibility
determination, to aid our review.”). Moreover, agency findings
of fact, including credibility determinations, “are conclusive
unless any reasonable adjudicator would be compelled to conclude
to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also INS v.
Elias-Zacarias, 502 U.S. 478, 481 & n. 1 (1992). “This deference
is broad but not absolute: an IJ who rejects a witness’s
positive testimony because in his or her judgment it lacks
credibility should offer a specific, cogent reason for his [or
her] disbelief.” Tewabe v. Gonzales, 446 F.3d 533, 538 (4th Cir.
2006) (alteration in original). Moreover, because the BIA
affirmed the IJ’s decision and added its own discussion of the
bases for its decision, “the factual findings and reasoning
contained in both decisions are subject to judicial review.”
Niang v. Gonzales, 492 F.3d 505, 511 n.8 (4th Cir. 2007); see
also Gandarillas-Zambrana v. BIA, 44 F.3d 1251, 1255 (4th Cir.
1995).
36
2.
As explained above, the IJ found that Djondo was not
credible based solely on the one-week inconsistency between, on
the one hand, the date of the red-shirt march in her testimony,
her sister’s testimony, and one of the written statements; and,
on the other hand, the date of the march contained in the State
Department and Amnesty International reports. The IJ made no
findings with respect to the demeanor, candor, or responsiveness
of Djondo or Gnininvi.
Djondo argues that in relying on the one-week error to
support the adverse credibility finding, the IJ violated the
REAL ID Act (in two ways) as well as the general requirement
that an adverse credibility finding be supported by substantial
evidence and a “specific” and “cogent” explanation. First,
Djondo argues that although the REAL ID Act does not require “an
explicit discussion of each factor” listed in the Act, an IJ
must “consider[] . . . all relevant factors, and not just the
ones that support an adverse credibility determination.” Pet.
Br. at 42 (emphasis in original). This the IJ failed to do, she
argues, because notwithstanding the IJ’s and BIA’s statements
that they considered “the totality of the circumstances,” J.A.
4, the IJ’s opinion shows that she “relied solely on the one-
week mistake” to find Djondo incredible, “without considering or
balancing the many relevant positive factors identified in the
37
REAL ID Act.” Pet. Br. at 34. Those “positive factors,” she
argues, are the following:
• “the inherent plausibility of the applicant’s or witness’s
account” – nothing about Djondo’s testimony that she
participated in and was beaten after the red-shirt march
was implausible, especially since the evidence of her
membership in the CDPA and her leadership of its women’s
wing was uncontested;
• “consistency between the applicant’s or witness’s written
and oral statements” – neither the IJ nor the BIA (nor the
Attorney General on appeal) has identified any such
inconsistency;
• “internal consistency of each such statement” – all the
statements are internally consistent; and
• “the consistency of such statements with other evidence of
record (including the reports of the Department of State
on country conditions)” – all of Djondo’s evidence,
including her testimony, was almost entirely consistent
with the country reports; the only inconsistency was as to
the date.
Id. at 44–45. “Consideration of all the relevant statutory
factors,” she argues, “compels a finding that [her] testimony
and supporting evidence was credible.” Id. at 46.
38
Second, Djondo argues, even if the IJ could limit the basis
for the adverse credibility finding to the one-week mistake, or
if we are assured that the IJ did “consider” all the positive
“factors,” the IJ and BIA still violated the REAL ID Act because
they failed to explain why the one-week mistake was material --
i.e., why the error was “relevant” to the question of whether
Djondo had failed to credibly show that she had suffered (and
would be likely to suffer) persecution. See Pet. Br. 48–50.
For the same reasons, apart from any requirements imposed
by the REAL ID Act, Djondo argues the IJ and BIA also violated
the separate, preexisting requirements that (1) an adverse
credibility determination be “supported by substantial evidence,
. . . i.e., evidence that is ‘reasonable, substantial, and
probative . . . on the record considered as a whole,’” Dankam,
495 F.3d at 120 (quoting Elias-Zacarias, 502 U.S. at 481), and
(2) that the IJ and BIA offer “specific, cogent reason[s]” for
an adverse credibility determination. Id. at 120-21 (quoting
Figeroa v. INS, 886 F.2d 76, 78 (4th Cir. 1989) (alteration in
original)). Pet. Br. 46. As we explained in a pre-REAL ID Act
case, an IJ must “demonstrate that he or she reviewed the record
and balanced the relevant factors and must discuss the positive
or adverse factors that support his or her decision.” Zuh v.
39
Mukasey, 547 F.3d 504, 509 (4th Cir. 2008) (emphasis in
original). 11
Here, Djondo argues, the one-week inconsistency between her
evidence and the country reports neither was substantial
evidence nor constituted a cogent reason for finding that
Djondo’s testimony of persecution could not be believed. As
Djondo explains:
[T]he Board provided no reasons, much less cogent
reasons, for concluding that the one week mistake in
dates affected the credibility not only of Ms. Djondo
and Ms. Gnininvi, but also of the six persons who
submitted corroborating statements, five of whom did
not mention the exact date of the demonstration.
Unlike Dankam and Camara, in this case the Board did
not attach any particular significance to the
incorrect date, and it did not give any explanation as
to why the mistake was significant. Nor is there any
evidence in the record, much less substantial
evidence, explaining why any significance can be
attached to Ms. Djondo’s mistaken testimony that the
demonstration took place on February 20 instead of
February 27 . . . .
The Board’s implicit, but unstated, conclusion is that
Ms. Djondo, Ms. Gnininvi, and the six persons
submitting written statements in support of Ms. Djondo
were all lying when they stated that Ms. Djondo
participated in the red-shirt demonstration and was
beaten up by government militia members afterwards.
Similarly, the Board must have concluded that the
detailed descriptions of Ms. Djondo’s past political
activities, the red-shirt demonstration, and the
Togolese militia's continued search for Ms. Djondo
after the demonstration are all fabricated.
11
Although Zuh was issued after 2005, the Act did not apply
to the petitioner’s claim because his application for asylum was
filed before May 11, 2005. See Zuh, 547 F.3d at 505.
40
Such a conclusion, however, simply does not follow
from the fact that Ms. Djondo and Ms. Gnininvi were
mistaken by one week as to the date of the
demonstration. Instead, the Board’s (and the
Immigration Judge’s) conclusion is based on nothing
more than speculation.
Pet. Br. at 48-49.
The Attorney General argues that the IJ and BIA did not
violate any of these requirements, contending that,
[d]espite the importance to her case of Petitioner’s
purported beating after the red shirt rally – the only
incident in which she claimed she was injured in Togo
– Petitioner failed to accurately state a key fact
about the rally – the date on which it took place. She
failed to provide an accurate narrative of the event,
which country conditions reports reveal occurred on
February 27, 2005. . . . . The fact that Petitioner
testified in a manner inconsistent with the country
conditions documents, which she proffered in support
of her claim, constituted a specific, cogent reason
for the agency to disbelieve her claim.
. . .
[Moreover,] [t]he agency did not err when rejecting as
unpersuasive Petitioner’s explanation that she simply
forgot the date, given that the “February 20, 2005”
date was repeated fifteen times during the merits
hearing, appeared in multiple corroborative documents,
and was reiterated by both testifying witnesses. . .
. Her argument fails to explain how three different
individuals [Djondo, Gninvini, and Semeho Komla Edoh]
each separately forgot the date, and coincidentally
mis-remembered the event as having occurred on
February 20.
Gov’t Br. at 25-27 (citations to record omitted).
The Attorney General also seeks to buttress the BIA’s
decision by providing an explanation for why the one-week
difference might be significant. As stated, the State Department
41
and Amnesty International reports describe a red-shirt march on
February 27; Djondo, Gninvini and Edoh described the march they
participated in as having occurred on February 20. Djondo and
Gninvini also testified (albeit somewhat ambiguously) and
Djondo’s husband stated (very ambiguously) that the purpose of
the march was to call for the resignation of Faure, the former
dictator’s son. 12 By the time the red-shirt march documented by
Amnesty International and the State Department took place on
February 27, Faure had already ceded power to Abass Bonfoh, the
first vice-president of the National Assembly. J.A. 724. The
Attorney General argues that this fact further supports the IJ’s
adverse credibility determination because “in order for the
agency to accept Petitioner’s explanation she had known the
march took place ‘in the 20’s’ and had merely confused the
February 20 date for February 27, the agency would also have to
discount volumes of proffered evidence and testimony claiming
the protesters at the red shirt rally were demanding
12
See J.A. 564 (Gninvini describing the march as “people
trying to call for a march . . . so he can step down”); 590
(Djondo describing the purpose of the march as “requesting the,
the reinstallation of the constitution, that Eyadema’s son
cannot become just the president”); 623 (Djondo describing in
her affidavit that the “women of the opposition organized a
march to ask the son of late EYADEMA to step down and put Mr.
NATCHABA in the presidency”); 653 (statement of Agbemehe Akoétey
Kossi, Djondo’s husband, that Djondo had “challenged the regime
by taking part to the march against Faure GNASSINGBE”).
42
[Gnassingbé’s] resignation.” Gov’t Br. at 29-30 (citing J.A.
564, 590, 623, 653).
3.
As best as I can discern, the IJ and BIA based the adverse
credibility determination on the following reasoning: Djondo and
her corroborating evidence discloses that she participated in a
red-shirt march on February 20, 2005, and was beaten on that
day; the only red-shirt march mentioned in the country reports
took place on February 27, 2005; therefore, she has not proven
past persecution. Based on the record here, I am persuaded that
this reasoning was inadequate and fatally lacks cogency.
There are, essentially, three possible interpretations of
Djondo’s evidence that might have supported the IJ’s decision.
First, the IJ might have believed Djondo that she participated
in the February 27 march (the one described by the State
Department and Amnesty International), and even that she was
beaten, but disbelieved Djondo’s testimony that she was beaten
because of her political views and/or that she fears she would
be persecuted if she were to return to Togo. Second, the IJ
might have believed Djondo that she participated in a march
sometime in February 2005, but disbelieved Djondo’s testimony
that she was beaten, or beaten because of her political views,
because of the date inconsistency between her evidence and the
country reports. Third, the IJ might have disbelieved Djondo
43
entirely, concluding that she had not proven that she
participated in any political rally in February 2005.
Conversely, there are at least two possible interpretations
of Djondo’s explanation for the inconsistency. As stated,
Djondo’s explanation was that “maybe I can’t remember exactly
the date” but she knew that she “took part in the one requesting
the demonstrators to wear red shirts.” J.A. 604-05. First, this
could mean that she did participate in the February 27, 2005,
march, but failed (consistently) to recall the precise date of
the march. Second, her explanation could mean that there were
two red-shirt rallies in February 2005, one prior to February 25
(the date Faure stepped down) and one after. This is a perfectly
plausible interpretation: the Amnesty International and State
Department reports might not have been 100 percent comprehensive
in listing the dates on which opposition parties held rallies.
Interpreting the evidence this way would completely undercut the
basis for the IJ’s adverse credibility finding (and the BIA’s
affirmance thereof). It would also undercut the government’s
post-hoc explanation that Djondo’s supposed one-week error was
significant because Faure stepped down prior to the February 27
march; if she was beaten on February 20, as she testified, then
she also would not have been lying that the purpose of the march
was to urge Faure to step down.
44
As this discussion illustrates, the IJ and BIA failed to
provide a cogent explanation for why they were discrediting
Djondo’s evidence. From the fact that the date in Djondo’s and
Gninivini’s testimony was inconsistent with the date in the
country reports, it does not necessarily follow that Djondo’s
credibility was undermined at all, let alone in a way fatal to
her claim of past political persecution. Moreover, the IJ did
not make any findings other than the one-week discrepancy that
might have supported the adverse credibility determination.
Finally, the Attorney General’s post-hoc theory that the
one-week error was significant because Faure stepped down on
February 25 does not buttress the IJ’s conclusion, for two
reasons. First, we cannot affirm an agency’s determination on a
ground the agency did not itself articulate. Am. Textile Mfrs.
Inst., Inc. v. Donovan, 452 U.S. 490, 539 (1981). Second, even
if there was no red-shirt march on February 20, 2005, Djondo’s
testimony was far from clear that the march she claimed to have
participated in occurred before Faure ceded power on February
25. As the State Department report explains, Abass Bonfoh, who
took over on February 25, was only an interim President, a
figurehead or placeholder. See supra n. 2. Faure remained the
“leader of the ruling party” and was “a candidate in the
announced presidential elections” to succeed Bonfoh. Id. “Real
power apparently was retained by Faure Gnassingbe as he
45
continued to use the offices of the President while the interim
President operated from the National Assembly.” Id. Accordingly,
a primary purpose of the February 27, 2005, protest might very
well have been to oppose the future re-ascension of Faure to
power. The record before us compels the conclusion that the IJ
and the BIA must address these perfectly plausible inferences
before summarily discrediting the claims here.
III.
For these reasons, in my view, the lack of a cogent
explanation for the adverse credibility finding requires that we
vacate the BIA’s order and remand for further proceedings.
Accordingly, I respectfully dissent.
46