Gomes, Keira v. Gonzales, Alberto R. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 03-3020 & 04-1018
JOHN GOMES, JESSIE GOMES,
JONATHAN GOMES, and KEIRA GOMES,
Petitioners,
v.
ALBERTO R. GONZALES, Attorney General
of the United States of America,
Respondent.
____________
On Petitions for Review of an Order
of the Board of Immigration Appeals.
Nos. A 29 840 664, A 70 582 368,
A 70 582 374 & A 70 657 632.
____________
ARGUED JANUARY 17, 2006—DECIDED JANUARY 11, 2007
____________
Before CUDAHY, POSNER, and WOOD, Circuit Judges.
WOOD, Circuit Judge. Petitioners John Gomes, his wife
Jessie, and their two minor children, natives and citizens
of Bangladesh, are seeking asylum in this country be-
cause of severe mistreatment they received as Catholics
in the midst of that prominently Islamic country. First an
immigration judge (IJ), and then the Board of Immigration
Appeals (BIA), affirming without opinion, rejected their
application for asylum, withholding of removal, and
protection under the United Nations Convention Against
Torture (CAT). The first petition for review before this
2 Nos. 03-3020 & 04-1018
court seeks relief from those rulings. In addition, the
Gomes family unsuccessfully sought reconsideration and
reopening of their case before the BIA. The second peti-
tion for review before us challenges that ruling. We have
consolidated the two petitions for argument and decision.
Because we conclude that the IJ did not adequately
support his decision denying the Gomeses’ application for
asylum, we grant their petition for review and remand
their case to the BIA for further proceedings consistent
with this opinion.
I
On December 10, 1990, Mr. Gomes entered the United
States with a visitor visa. He was authorized to remain in
the country until June 9, 1991, but he stayed well beyond
that date. The rest of his family joined him on March 31,
1992, also entering with visitor visas. While living in the
United States, the Gomeses had a third child, Kimberly,
on April 1, 1996.
The government’s brief indicates that some time in 1992,
the Gomeses applied for political asylum with the former
Immigration and Naturalization Service (INS), whose
functions were largely taken over by the Department of
Homeland Security in 2003. (Although this means that
Mr. Gomes’s application must have been filed more than
one year after his arrival, the one-year time limit for such
applications was added by Title VI of the Illegal Immigra-
tion Reform and Immigrant Responsibility Act of 1996,
Pub. L. No. 104-208, Title VI, § 604(a), codified at 8 U.S.C.
§ 1158(a)(2)(B). It therefore did not apply to any of the
Gomeses’ petitions.) Because the Gomeses had overstayed
their visitors’ visas, the INS referred their asylum applica-
tion to the immigration court and placed them in removal
proceedings. They received their Notices to Appear be-
fore the immigration court on April 22, 2002.
Nos. 03-3020 & 04-1018 3
At the removal hearing, the Gomeses admitted that they
had stayed in the United States longer than their visas
permitted and conceded that they were subject to removal.
Mr. Gomes, however, sought relief in the form of asylum,
withholding of removal, and protection under the CAT
based on his claim that he and his family had been
persecuted by Muslim extremists in Bangladesh because
of their active involvement with the Roman Catholic
church. At the hearing, Mr. Gomes testified that he was
born into a staunchly Catholic family and had been both
an active member of the Catholic community and a
volunteer with a number of Christian organizations
since the 1980s.
On April 10, 1990, while riding his motorcycle to a
meeting at the Holy Cross Church in Bangladesh, he was
struck from behind and rendered unconscious. He was
seriously injured in the attack: his jaw was broken, he
required twenty stitches in his head, his lips were stitched
together, and he spent a little over a week in the hospital.
As proof, Mr. Gomes submitted dental records that
indicated that he had suffered permanent damage as a
result of this attack, and he presented a certificate of
discharge confirming when he was in the hospital. Since
the attack, he testified, he has suffered from memory loss.
When IJ O. John Brahos asked him how he knew that his
attackers were Muslim fundamentalists, he replied that
his neighbors, who were eyewitnesses to the attack, told
him that four or five Muslim extremists pulled up in a
car behind him and attacked him with what appeared to
be an iron rod and a hockey stick. These witnesses identi-
fied Mr. Gomes’s attackers as Muslim extremists based
upon their dress. Again Mr. Gomes submitted corroborat-
ing evidence to the IJ, this time letters from witnesses
who supported his account. Mr. Gomes indicated that
Muslim fundamentalists in Bangladesh would “always
try to stop [him] from preaching [his] religion.” Prior to the
4 Nos. 03-3020 & 04-1018
attack, he had received anonymous telephone calls at his
job threatening that if he did not stop “doing what [he was]
doing” he would be hurt. These callers also told him to
“change [his] religion.”
Matters did not improve after he was released from the
hospital. On April 19, 1990, shortly after he returned
home, Muslim fundamentalists broke down his door and
ransacked his house. Again, he was able to identify the
perpetrators as Muslim fundamentalists because of their
dress. While in his home, the perpetrators set fire to his
curtains, pushed him and his wife to the ground, and
physically threatened him with a large knife. They took
his television and other personal belongings. Before
leaving they told him: “[N]ext time we’ll come we’ll kill
you.” “This is the last chance. Are you legal Christianity or
you death [sic]?” Mr. Gomes reported both of these inci-
dents to the police, but the police did not conduct any
meaningful follow-up investigations. Mr. Gomes con-
cluded his testimony by telling the IJ that he feared he
would lose his life if he returned to Bangladesh.
Mrs. Gomes also testified at the removal hearing. She
told the IJ that Muslim fundamentalists often harassed
her. For example, on her way to work, Muslim extremists
would stop her and question her about the whereabouts of
her husband. Almost every night someone would throw
stones at her window to scare her. She also testified that,
shortly after Mr. Gomes came to the United States, her
family members suffered persecution because they are
Roman Catholics. Her brother and sister-in-law were
attacked on their way home from a mass during Easter
season by a group of Muslim extremists. During the
attack, her brother was cut on his elbow and knee, and her
sister-in-law was cut on the head. Her family members
identified their attackers as Muslim fundamentalists
because of their dress. Another brother was robbed by
Muslim extremists while at work. Both his arm and his
Nos. 03-3020 & 04-1018 5
tongue were sliced with a knife, and the robbers put a gun
to his head. This incident was reported in a local newspa-
per, and the article was submitted to the IJ. Additionally,
Mrs. Gomes testified that a more distant relative, who
was an active Christian, was murdered in her home by
Muslim fundamentalists after returning from a prayer
meeting. This event also made the local papers, and a copy
of the article was submitted to the IJ for the record.
In addition to this testimony, more than twenty docu-
ments were admitted into evidence documenting both the
physical harm to Mr. Gomes and his family members and
the persecution suffered by Christians in Bangladesh in
general. These documents included a number of letters
from various priests and heads of religious organizations
corroborating Mr. Gomes’s account of the attack on his
person and the invasion of his home by Muslim fundamen-
talists. The record also included various newspaper re-
ports of recent attacks on Christian institutions in Bangla-
desh, including an attack by Muslims on a Catholic girls’
school in Dhaka, two separate bombing incidents (involv-
ing a church and a missionary school), and a terrorist
attack against Christians. Finally, the record included
the Department of State Annual Reports on International
Religious Freedom in Bangladesh for 1999 and 2000 and
the 1999 Country Report on Human Rights Practices in
Bangladesh.
In a decision dated May 21, 2002, IJ Brahos denied the
Gomeses’ asylum application, finding that they had not
established past persecution or a well-founded fear of
future persecution as required under the statute. See INA
§ 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). Based on his
conclusion that the Gomeses did not qualify for asylum,
the IJ also denied their request for withholding of removal
and protection under the CAT. The judge did, however,
grant them the privilege of voluntary departure. The
6 Nos. 03-3020 & 04-1018
Gomeses appealed to the BIA, which affirmed the IJ’s
decision without opinion on July 22, 2003.
On August 21, 2003, the Gomeses filed a motion to
reconsider. Shortly thereafter, they filed a motion to
reopen the proceedings, in which they asserted that they
had previously unavailable evidence supporting their
claims for relief. In support of the motion, they submitted
a June 2003 report from the International Christian
Concern organization, which detailed more recent attacks
against Christians in Bangladesh. In addition, they
furnished more newspaper articles describing acts of
violence against Christians, including an article that
reported the stabbing death of a Christian evangelist
and an article recounting the kidnapping of a “Gospel for
Asia” missionary. They also submitted documents that
reported on a religiously-motivated attack against other
members of the Gomes family and on an attack of a
Christian mission on Good Friday, April 18, 2003. In an
affidavit accompanying the motion to reopen, Mr. Gomes
added that he feared that his two daughters would be
subjected to female genital mutilation if forced to return
to Bangladesh.
The BIA denied both of these motions on December 22,
2003. In denying the motion to reconsider, the BIA opined
that the Gomeses were just rehashing arguments that
it had already considered when it originally affirmed the
IJ’s decision. With respect to the motion to reopen, the BIA
ruled that the evidence was cumulative, given that the
administrative record already contained evidence describ-
ing similar acts of violence against Christians in Bangla-
desh. The BIA also found that the Gomeses had failed
to explain how this new evidence would change the result
in their case. Finally, the BIA rejected the female genital
mutilation argument, because it had not been raised
earlier at the removal hearing.
Nos. 03-3020 & 04-1018 7
As they were required to do, the Gomeses filed separate
petitions for review from the BIA’s denial of their peti-
tions on the merits and its denial of their motions to
reopen and reconsider. Because the BIA affirmed the IJ’s
decision without opinion, we review the IJ’s decision
directly. See, e.g., Sosnovskaia v. Gonzales, 421 F.3d 589,
592 (7th Cir. 2005).
II
Our review is, of course, deferential. We must affirm the
IJ’s decision if it is supported by reasonable, substantial,
and probative evidence. INS v. Elias-Zacarias, 502 U.S.
478, 481 (1992); Mansour v. INS, 230 F.3d 902, 905 (7th
Cir. 2000); Mitev v. INS, 67 F.3d 1325, 1330 (7th Cir.
1995). Under the statute, “the administrative findings of
fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.” INA
§ 242(b)(4)(B), 8 U.S.C. § 1252(b)(4)(B). The BIA’s decision
to grant or deny a motion to reconsider or a motion to
reopen is reviewed for abuse of discretion. Dandan v.
Ashcroft, 339 F.3d 567, 575 (7th Cir. 2003). In consider-
ing the Gomeses’ petition for review, our role is not to
conduct a de novo inquiry into the merits of the case. See
Gonzales v. Thomas, 126 S. Ct. 1613, 1615 (2006); INS v.
Ventura, 537 U.S. 12, 16 (2002). We may, however, remand
a case to the agency for additional explanation or investi-
gation, if the BIA (or the IJ, in a case like this one that
was affirmed without opinion) has not adequately ex-
plained its result and it seems possible to us that the
agency might be compelled to reach the opposite conclu-
sion depending how it evaluates the record after remand.
See Thomas, 126 S. Ct. at 1615; Ventura, 537 U.S. at 16.
In their petition for review, the Gomeses argue that the
IJ erred in denying Mr. Gomes’s application for asylum.
Section 208(b)(1)(A) of the INA, 8 U.S.C. § 1158(b)(1)(A),
8 Nos. 03-3020 & 04-1018
empowers either the Attorney General or the Secretary of
Homeland Security to grant asylum to aliens who qualify
as refugees. See, e.g., Koval v. Gonzales, 418 F.3d 798, 804
(7th Cir. 2005). A “refugee” is “any person who is outside
any country of such person’s nationality . . . and who is
unable or unwilling to return to . . . that country be-
cause of persecution or a well-founded fear of future
persecution on account of race, religion, nationality,
membership in a particular social group, or political
opinion.” INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A)
(2005); see also Zheng v. Gonzales, 409 F.3d 804, 808 (7th
Cir. 2005). An applicant for asylum bears the burden of
proving by a preponderance of the evidence that she
qualifies as a “refugee” as defined by the statute.
Sosnovskaia, 421 F.3d at 593 (citing 8 C.F.R. § 208.13(a)).
“[A]n applicant who is determined to have suffered past
persecution is presumed to have a well-founded fear of
future persecution,” id. at 593, and a “rebuttable presump-
tion arises in favor of granting asylum.” Angoucheva v.
INS, 106 F.3d 781, 788 (7th Cir. 1997). In order to rebut
this presumption, the government bears the burden of
proving, again by a preponderance of the evidence, that
there has either been “a fundamental change in circum-
stances” in the applicant’s country such that the appli-
cant’s fear of future persecution is no longer well-founded
or that the applicant “could avoid future persecution by
relocati[ng] to another part of the country.” Sosnovskaia,
421 F.3d at 593 (quoting 8 C.F.R. § 208.13(b)(1)(i)(B);
Bace v. Ashcroft, 352 F.3d 1133, 1140 (7th Cir. 2003)). The
INA does not specifically define “persecution,” but we
have described it, without contradiction from the BIA, as
“punishment or the infliction of harm for political, reli-
gious, or other reasons that this country does not recog-
nize as legitimate. . . . As we have also indicated, persecu-
tion means more than harassment and may include such
actions as detention, arrest, interrogation, prosecution,
Nos. 03-3020 & 04-1018 9
imprisonment, illegal searches, confiscation of property,
surveillance, beatings, or torture.” Toptchev v. INS, 295
F.3d 714, 720 (7th Cir. 2002) (all internal quotation marks
and citations deleted). See also Mitev, 67 F.3d at 1330.
In determining that Mr. Gomes had not shown past
persecution in Bangladesh, the IJ did not make any
credibility determinations. Instead, he said that “even
assuming that the respondent’s claims are true, the
harassment the respondent endured by Muslim fundamen-
talists, without more, simply does not rise to the level of
past persecution as contemplated under the Act.” He did
not, however, give any reason for that conclusion, or for
why the events that Mr. Gomes described failed to meet
the definition of persecution. His attackers (whose deeds
the police ignored) repeatedly proclaimed that they
were targeting Mr. Gomes because of his religion and
they were trying to force him to abandon Christianity
for Islam. As we wrote in Kantoni v. Gonzales, “A credible
threat that causes a person to abandon lawful political or
religious associations or beliefs is persecution. Bucur v.
INS, 109 F.3d 399, 405 (7th Cir. 1997) (“it is virtually the
definition of religious persecution that the votaries of a
religion are forbidden to practice it”); Krotova v. Gonzales,
416 F.3d 1080, 1086-87 (9th Cir. 2005); Mamouzian v.
Ashcroft, 390 F.3d 1129, 1137 n. 6 (9th Cir. 2004).” 461
F.3d 894, 898 (7th Cir. 2006).
In reading the IJ’s decision, we cannot tell what defini-
tion of persecution he was using or how he was applying
it to Mr. Gomes’s case. We recognize, of course, that at
some point a line must be drawn between “harassment”
and “persecution,” and it is for the agency to draw that
line. Nor is there any question about the fact that the
conduct in question “must rise above the level of mere
harassment to constitute persecution,” Asani v. INS,
154 F.3d 719, 723 (7th Cir. 1998). Nonetheless, the agency
has never expressed disapproval of the definition of
10 Nos. 03-3020 & 04-1018
persecution we have been following, and so it is appropri-
ate for us to use it in our assessment of the IJ’s opinion.
From that point of view, there can be no doubt that
Mr. Gomes described far more than general harassment,
which he endured because he was a Catholic. We have
described this testimony already, and it tells a tale of
severe physical abuse and terrorism inside his home, when
his curtains were set on fire as Muslim fundamentalists
held a knife to his throat and confiscated his property.
See, e.g., Capric v. Ashcroft, 355 F.3d 1075, 1084 (7th Cir.
2004) (noting that persecution can include “confiscation of
property, surveillance, beatings, torture, [and] behavior
that threatens the same. . .” (citations omitted)). The
Bangladeshi government was responsible for this persecu-
tion, according to the testimony the IJ was willing to
credit, because the police were either condoning these
attacks or were unable to prevent them. See Guchshenkov
v. Ashcroft, 366 F.3d 554, 557 (7th Cir. 2004), citing Bace,
352 F.3d at 1138-39.
According to Mr. Gomes, he was harshly beaten on one
occasion. There is no requirement, naturally, that a per-
son must endure repeated beatings and physical torment
in order to establish past persecution. Although “multiple
incidents create a more compelling case for finding per-
secution” the number of times that an applicant has been
subjected to physical abuse “is merely one variable in the
analysis of the whole of the petitioner’s claim of past
persecution.” Dandan, 339 F.3d at 573. In Vaduva v. INS,
131 F.3d 689, 690 (7th Cir. 1997), for example, this court
noted that a single beating in which strangers punched
the petitioner in the face and broke his finger was suffi-
cient evidence of past persecution. In Asani, we remanded
a case to the BIA to determine whether a detention that
involved a single beating in which the petitioner’s two
front teeth were knocked out constituted past persecution.
154 F.3d at 722-23. Although “broken bones are [not] the
Nos. 03-3020 & 04-1018 11
sine qua non of persecution. . . these specifics indicate the
severity of the beating and support its claim to be consid-
ered persecution.” Dandan, 339 F.3d at 574.
Another problem with the IJ’s opinion, given the fact
that he was (apparently) crediting all of Mr. Gomes’s
testimony, was his conclusory statement that there was
no clear evidence that Mr. Gomes or his family had been
targeted because of their religious beliefs. We cannot see
how one could come to that conclusion on this record. In
fact, there is a great deal of evidence that supports the
Gomeses’ claims that they were targeted because of
their religious beliefs. First, there is Mr. Gomes’s testi-
mony that anonymous callers threatened his life and
demanded that he “change [his] religion.” Mr. Gomes also
told the IJ that when the Muslim fundamentalists
broke into his home they gave him an ultimatum: either
he could renounce Christianity or he could choose death.
The fact that the attacks on Gomes family members often
took place en route to religious meetings is at least
circumstantial evidence that they were religiously moti-
vated. In addition, the record contains a number of letters
from priests and the heads of other Christian organiza-
tions corroborating Mr. Gomes’s account of his attack and
opining that Mr. Gomes and his family had been singled
out for persecution because of their active involvement
with the Catholic church. The government suggests that
the authors of these letters failed to explain adequately
why they thought that these attacks were done for reli-
gious reasons, but a suggestion by appellate counsel cannot
fill a gap in the administrative record. The IJ never
mentioned these letters in his decision.
Mrs. Gomes supported the family’s claim in her account
of a number of events in which Muslim fundamentalists
approached her about her husband and his activity in
the Catholic community. She told the IJ about several
12 Nos. 03-3020 & 04-1018
acts of violence against her own family. One occurred in
1991, when Muslim extremists attacked her brother and
sister-in-law as they were leaving an Easter mass; another
occurred some time around the hearing, when she re-
ceived news from Bangladesh that her other brother had
been attacked and robbed by Muslim extremists. Mrs.
Gomes told the court that a relative had recently been
murdered by Muslim extremists in Bangladesh after he
left a prayer meeting. The newspaper article reporting
this incident made specific reference to the fact that the
victim was a “Christian.” All of this evidence supports
the Gomeses’ claims that these events were not random
acts of violence, but religiously-motivated attacks.
Perhaps most problematic is the weight that the govern-
ment apparently places on the fact that Mr. Gomes did
not see the people who attacked him. But, as Mr. Gomes
testified, he was attacked from behind and struck uncon-
scious, making it virtually impossible for him to furnish a
physical description of his attackers. Mr. Gomes offered
instead accounts from eyewitnesses who were able to see
the perpetrators. Once again, the IJ makes no mention of
this supporting evidence in his decision. As we have noted
before, “It is well-established that the credible testimony
of an alien, without more, may be sufficient to sustain
an asylum claim.” Korniejew v. Ashcroft, 371 F.3d 377, 382
(7th Cir. 2004); see also Ikama-Obambi v. Gonzales, 470
F.3d 720, 725 (7th Cir. 2006). Mr. Gomes’s credible testi-
mony, coupled with these corroborating accounts, certainly
looks like enough. Without any explanation from the IJ
that takes these materials into account, we have no
idea why the IJ ruled as he did.
Even if the IJ’s determination that Mr. Gomes failed
to prove past persecution is wrong, if the judge reason-
ably found that there was no risk of future persecution,
we would deny the petition for review. In order to estab-
Nos. 03-3020 & 04-1018 13
lish a well-founded fear of future persecution, “an alien
must not only show that his or her fear is genuine but
must establish that a reasonable person in the alien’s
circumstance would fear persecution.” Asani, 154 F.3d at
725. A petitioner can meet the objective component
“through the production of specific documentary
evidence or by credible persuasive testimony,” while the
subjective component “turns largely upon the applicant’s
own testimony and credibility.” Balogun v. Ashcroft, 374
F.3d 492, 499 (7th Cir. 2004).
In finding that Mr. Gomes did not establish a well-
founded fear of future persecution, the IJ first recognized
that, according to the State Department’s 2000 Interna-
tional Religious Freedom Report for Bangladesh, “in recent
years, cases of violence directed against minority com-
munities . . . have resulted in the loss of lives and prop-
erty.” The IJ also took note of the report’s statement
that “[p]olice, who generally are ineffective in upholding
law and order, often are slow to assist in such cases.”
Despite this evidence, the IJ announced that the docu-
ments in the record did not provide convincing evidence
that Christians in Bangladesh are or have been perse-
cuted. In this connection, he mentioned the State Depart-
ment’s 1998 Asylum Profile, which stated that “the
minority religious communities ‘Christians and Buddhist’
have generally been able to live and worship with rela-
tively few difficulties.” According to the IJ’s reading of this
report, religious minorities live in Bangladesh with “a
minimum of difficulty,” and whenever isolated instances
of violence against religious minorities break out, “the
government moved quickly to contain these outbreaks.”
Additionally, the report stated that “Islamic fundamental-
ism is not an important force in Bangladesh.”
Our major concern with the IJ’s decision with respect
to the Gomeses’ likelihood of future persecution is his
exclusive reliance on the State Department reports,
14 Nos. 03-3020 & 04-1018
without factoring in other evidence in the record. In a
number of decisions, we have addressed the immigration
court’s “chronic overreliance” on such reports. Niam, 354
F.3d at 658; see also Bace, 352 F.3d at 1139 (“[ I]t would
be improper to find that a witness’s testimony about
specific events could be contradicted by a generalized State
Department report broadly discussing conditions in the
applicant’s country of origin.”); Galina v. INS, 213 F.3d
955, 959 (7th Cir. 2000) (“[T]he [State Department] reports
are brief and general, and may fail to identify specific,
perhaps local, dangers to particular, perhaps obscure,
individuals.”). In fact, we have expressed a “healthy
skepticism” of these reports. Begzatowski v. INS, 278 F.3d
665, 672 (7th Cir. 2002) (noting that the BIA should treat
State Department reports “with a healthy skepticism,
rather than, as is its tendency, as Holy Writ”); see also
Niam, 354 F.3d at 658 (“The State Department naturally
is reluctant to level harsh criticisms against regimes
with which the United States has friendly relations.”).
Evidence in the record apart from the Gomeses’ own
testimony—specifically a letter from a parish priest in
Bangladesh—indicates that “Catholics in the country are
being intimidated, harassed, threatened, killed, and their
personal properties destroyed by . . . Muslim extremists.”
The IJ does not even mention this highly adverse evidence,
as he concludes that Bangladesh is a safe place for Chris-
tians.
In fact, the State Department Reports themselves do
not paint such a sunny picture of life for Catholics in
Bangladesh. The 2000 Annual Report on International
Religious Freedom indicates that there has been violence
directed toward religious minority communities and that
the police are often ineffective at dealing with such
incidents. In addition, the Report notes that “[t]he Govern-
ment responded quickly, but ineffectively, after an April
1998 attack on a Catholic school in Dhaka,” an incident
Nos. 03-3020 & 04-1018 15
that the IJ ignored, even though Mr. Gomes’s lawyer
mentioned it at the hearing. A translation of a Bangladeshi
newspaper article in the record detailing this attack
quotes a foreign official as remarking that “Christians
have no business in the country [Bangladesh] and should
take-off [sic] to where they belong America, England,
and/or even Italy [sic].” The IJ had the obligation to
explain why he chose to credit selected portions of cer-
tain State Department reports over other parts, and why
he apparently gave the favored parts of the reports more
weight than the accounts of individuals who actually
live in Bangladesh.
As we have already noted, in order to reverse a finding
of past persecution or a well-founded fear of future perse-
cution “we must be convinced that the evidence compels
a decision contrary to the Board’s.” Diallo v. Ashcroft, 381
F.3d 687, 698 (7th Cir. 2004). In order to earn this degree
of deference, however, “the IJ must announce its decision
in terms sufficient to enable a reviewing court to perceive
that it has heard and thought and not merely reacted.”
Sosnovskaia, 421 F.3d at 592 (internal quotations omitted).
In this case, the IJ’s efforts fell short. We cannot defer to
“findings of fact that the immigration judge has not made.”
Diallo, 381 F.3d at 698. The omissions and shortcomings
in the IJ’s decision that we have described leave us no
choice but to remand for further proceedings. See Iao v.
Gonzales, 400 F.3d 530, 534 (7th Cir. 2005).
III
The Gomeses also challenge the IJ’s decision denying
them withholding of removal and protection under the
CAT. The standard for both of these forms of relief is more
stringent than that for asylum. In order to succeed on a
withholding of removal claim, an applicant must establish
“a clear probability” that she will suffer persecution if
16 Nos. 03-3020 & 04-1018
she returns to her home country. Nigussie v. Ashcroft, 383
F.3d 531, 534 (7th Cir. 2004). For CAT protection, the
Gomeses must show that “it is more likely than not that
[they] would be tortured if removed to [Bangladesh].” Id.,
citing 8 C.F.R. §§ 1208.16(c)(2).
Because the IJ’s decisions with respect to the withhold-
ing of removal and CAT claims were based on his view that
the Gomeses had not satisfied their burden of establishing
that they qualified for asylum and we are granting their
petition for review with respect to that question, it is
unnecessary for us to say much more about these claims.
On remand, the immigration court should review them
in light of its reconsideration of the administrative record.
Similarly, because we find that the IJ’s decision was not
supported with adequate reasoning and are remanding
this case to the immigration court for further consider-
ation, it is unnecessary for us to determine whether the
BIA abused its discretion in denying the motions to reopen
and to reconsider.
IV
We GRANT the Gomeses’ petition for review from the
decision of the BIA rejecting their claims for asylum and
associated relief and REMAND for further proceedings
consistent with this opinion.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-11-07