Tchemkou, Mireille v. Mukasey, Michael B. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2638
MIREILLE TCHEMKOU,
Petitioner,
v.
ALBERTO R. GONZALES,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals
No. A79 573 118
____________
ARGUED JUNE 4, 2007—DECIDED JULY 31, 2007
____________
Before RIPPLE, ROVNER and SYKES, Circuit Judges.
RIPPLE, Circuit Judge. Mireille Tchemkou, a native and
citizen of Cameroon, arrived in the United States on a
visitor’s visa and timely applied for asylum. An Immigra-
tion Judge (“IJ”) denied her request, and the Board of
Immigration Appeals (“BIA”) affirmed that denial. Ms.
Tchemkou timely petitioned for review in this court. We
now grant the petition.
2 No. 06-2638
I
BACKGROUND
A. Facts
Ms. Tchemkou is a native of Cameroon and a member of
the ethnic minority Bamileke tribe. Her troubles with the
Cameroonian government began in 1993 during her
senior year in high school. At that time, she was involved
in the United Nations Education, Science and Culture
Organization (“UNESCO”) at Mbanga High School. In
April and May of 1993, the teachers at Mbanga High School
went on strike because they, unlike teachers in non-
Bamileke regions, had not been paid for several months.
Because of the teachers’ absence, the Mbanga students
were not able to prepare for a national examination re-
quired for admittance to Cameroon’s universities. Ms.
Tchemkou helped organize a protest to end the strike;
specifically, the students, together with parents and
teachers, planned to march from the high school to the
regional leader’s office.
On the day of the march, the police intercepted the
students. Their presence frightened away most of the
students with the exception of the six UNESCO board
members. The police confronted Ms. Tchemkou and,
according to Ms. Tchemkou’s testimony, stated:
Do you think that you can change the government, do
you think that these activities that you are, these
activities that you have will end up somewhere? You
should just shut up if you want to lead a quiet life
in this country. We do not want people like you creat-
ing chaos and giving us so much work. If you want
to stay alive you must keep away from these kind of
activities which you have now started.
No. 06-2638 3
A.R.99. The police then began beating Ms. Tchemkou and
the other students with batons; Ms. Tchemkou was
struck in the jaw, loosening several teeth. The students
then were forced into a police truck and taken to the police
station where the beatings continued.
At the station, the police interrogated Ms. Tchemkou,
threatened her life and told her that they would teach her
a lesson for speaking out against the government. A.R.558.
The police detained Ms. Tchemkou in a cell with numerous
other prisoners. During her three-day incarceration, she
had nothing to eat or to drink, and the cell in which
she was placed did not have sanitation facilities. Because
the cell was crowded and did not contain any benches or
other furniture, Ms. Tchemkou was forced to stand
throughout the duration of her detention. Additionally,
because she was the only female in the cell, she was
forced to clean the male prisoners’ excrement off the floor.
Upon Ms. Tchemkou’s release, she required a two-week
hospital stay to recover from severe dehydration, fever,
stomach pain and other physical injuries.1 After Ms.
Tchemkou’s hospitalization, her parents feared for her
safety and sent her to the neighboring country of Benin.
She stayed in Benin for two and one-half years. During
that time, she received psychological counseling to over-
come depression. Ms. Tchemkou returned to Cameroon in
December 1996 against her parents’ wishes. Although she
returned, she kept to her parents’ home for another year.
In January 1998, Ms. Tchemkou began attending the
University of Dschang. There, she became friendly with
1
During her stay in prison, she also contracted a chronic
fungal nail infection that still afflicts her today.
4 No. 06-2638
several members of the Social Democratic Front (“SDF”),
the primary political opposition organization in Cameroon.
Ms. Tchemkou learned that her uncle, an SDF official, was
hosting a party in a nearby town. Ms. Tchemkou traveled
to the party with several members of the SDF in a bus
decorated with SDF banners. On the return trip, the police
stopped the bus, demanded the students’ identity papers
and took down their names. The police asked Ms.
Tchemkou whether she had “come [to the university] to
study or do politics?” A.R.105.
In May 1998, Ms. Tchemkou learned that the university
was closing its psychology department. According to Ms.
Tchemkou, the government believed that the professors
and students in the department were sympathetic to
opposition groups. See A.R.108-09, 559. Ms. Tchemkou
met with other psychology students to discuss ways to
prevent the department’s closure. Shortly after the meeting
began, police, armed with guns and batons, raided the
meeting. They told the students to disband and to leave
any papers behind, including the attendance sheet the
students had signed.
Later that night, as Ms. Tchemkou prepared for bed,
she heard pounding and shouting at her apartment door.
When she answered, three men wearing Cameroonian
military uniforms forced their way into the apartment and
turned out the lights. They immediately started question-
ing Ms. Tchemkou. After Ms. Tchemkou identified herself
in response to their queries, “[t]hey said so yes indeed
you are the person we are looking for.” A.R.110. They
accused Ms. Tchemkou of being a “Bamileke” and “against
the government.” Id. Ms. Tchemkou then was gagged,
blindfolded, forced into the abductors’ car and driven
away from her apartment. After the car stopped, the
No. 06-2638 5
soldiers dragged her through a wooded area, beat her and
kicked her; as a result, she suffered scarring on her arms
and shins. One of her abductors tore part of Ms.
Tchemkou’s left ear and told her not to return to campus.
A.R.560. The soldiers then threw Ms. Tchemkou back in
the car where she fainted from pain.
When Ms. Tchemkou regained consciousness, she was
in a hospital where she remained for 24 days. During this
time she was treated for a serious cut to her left earlobe as
well as muscle aches. A.R.331. After her release, she
returned to her parents’ home and continued to receive
physical therapy and psychological treatment.
Ms. Tchemkou did not return to school for over a
year. In October 2000, she began attending the British
College of Professional Management in Douala. In January
2001, local police in Douala arrested nine males for alleg-
edly stealing a neighbor’s cooking gas. It was feared that
the teens had been executed, and Ms. Tchemkou coordi-
nated with several political groups to try to determine
what had happened to these young men. Together these
groups organized peaceful demonstrations to pressure the
government to disclose this information. The first demon-
stration was on March 4, 2001. When the protestors arrived,
security officers already were on the scene and began
attacking the crowd. Ms. Tchemkou suffered a baton
blow to the head as police dispersed the protestors.
A second protest was scheduled for March 11, 2001.
Again the police intervened, this time using tear gas and
using water canons laced with chemicals to disperse the
crowd. Police also beat the protestors with batons. Ms.
Tchemkou was knocked to the ground; she was kicked and
beaten with a baton on her back, elbows and shins. Ms.
Tchemkou saw that the police were arresting some of the
6 No. 06-2638
protestors and fled to a nearby church for sanctuary. The
pastor of the church, after hearing of the police tactics,
advised Ms. Tchemkou to stay at the church under his
protection to assure her safety. Ms. Tchemkou remained
at the church for two weeks while the pastor worked
with Ms. Tchemkou’s family to obtain an exit visa. The
pastor also arranged for financing for Ms. Tchemkou’s
airfare and used his status as a clergyman to escort her
through the airport without government involvement.
After Ms. Tchemkou arrived in the United States on April
9, 2001, the Cameroonian government issued two sum-
monses for her to appear before the authorities.
B. Administrative Proceedings
A few months after Ms. Tchemkou had arrived in the
United States, she applied for asylum. The asylum officer
denied her request, and she was served with a notice to
appear.
Before the IJ, Ms. Tchemkou conceded deportability but
renewed her request for asylum, withholding of deporta-
tion and relief under the Convention Against Torture
(“CAT”). At the hearing, Ms. Tchemkou testified to the
above events.2 The IJ found that Ms. Tchemkou was
2
In addition to her oral testimony, Ms. Tchemkou provided the
IJ with documentation concerning her hospitalizations, her
recent health examinations and Cameroon’s poor human rights
record. The record also contains a letter from Ms. Tchemkou’s
uncle and SDF parliamentarian, Paul Tchatchouang, stating that,
because Ms. Tchemkou previously had opposed the Cameroo-
nian government, she continued to face a serious risk of abuse
(continued...)
No. 06-2638 7
“genuinely credible,” A.R.55, but nevertheless determined
that Ms. Tchemkou had not established past persecution.
The IJ first stated that the mistreatment suffered by
Ms. Tchemkou in 1993, 1998 and 2001 “were disparate
offense[s] in which the most serious mistreatment that
she experienced was a cut to her earlobe.” A.R.53.3 The
IJ continued:
I don’t think these are comparable to which the Sev-
enth Circuit[4] has found past persecution. The inci-
dents, although united by detention and beating in
two of the three cases, and by government security
forces either administering the beating or arresting the
respondent or pursuing her, do share that theme.
However, otherwise, they’re very different. Namely
they involve different places, respondent being in-
volved in different activities. This is not a case for
example, where the respondent’s activity, the same
2
(...continued)
and death should she return to Cameroon. He also noted that
many of the students with whom Ms. Tchemkou had associated
in the past had died after her departure and that the govern-
ment of Cameroon would do its best to destroy anyone who had
opposed it. A.R.248-53.
3
The IJ’s characterization of the first incident was equally
benign: “One of the incidents occurred when the respondent
was very young and in the equivalent of high school. She had
to do some unpleasant duty cleaning toilets. However distaste-
ful, I don’t think this constitutes persecution.” A.R.53.
4
The cases cited by the IJ as examples of this court’s jurispru-
dence on persecution were Asani v. INS, 154 F.3d 719 (7th Cir.
1998), Vaduva v. INS, 131 F.3d 689 (7th Cir. 1997), and Dandan
v. Ashcroft, 339 F.3d 567 (7th Cir. 2003). See A.R.52.
8 No. 06-2638
activity participated encounters with government
forces each time.
Id.Additionally, the IJ determined that Ms. Tchemkou was
not likely to suffer persecution upon her return to Camer-
oon:
I think that, given the sporadic and varied nature of the
incidents separated one from another time and the
rather mild encounter that the respondent had, [in]
2001, which was the last incident and the incident on
which she claimed she based her decision to depart
Cameroon, I am just not convinced that there is an
objective basis for her fear of returning to that country
now. . . .
Id. at 55. Having determined that Ms. Tchemkou did not
meet her burden for asylum, the IJ also denied her with-
holding of removal. Finally, he did not “think that the
mistreatment that she suffered rises to the level [of]
torture,” and the type of treatment she endured did not
“portend[] future mistreatment [that] would meet the
definition of Section 1 of the Convention Against Torture.
Therefore, Torture Convention relief is denied.” Id. at 56.
The BIA affirmed. The Board stated that “we find the
record adequately supports the Immigration Judge’s
finding that the respondent’s ‘genuinely credible’ testi-
mony failed to establish past persecution or a well-founded
fear or clear probability of future persecution or torture
in Cameroon.” A.R.2 (citing Liu v. Ashcroft, 380 F.3d 307,
313-14 (7th Cir. 2004)). The Board also noted that “the
record does not sufficiently show that the government
remains interested in the respondent. Despite having 6
police summons on record dating from November 2000,
No. 06-2638 9
the respondent was able to continue her education, and
obtain an exist [sic] visa and use her passport to leave
Cameroon without any problems.” Id.Ms. Tchemkou timely petitioned for review of the BIA’s
decision.
II
ANALYSIS
A.
Ms. Tchemkou first maintains that the BIA erred when
it determined that she had not suffered past persecution.
Where, as here, the BIA adopts the IJ’s decision and also
supplements the IJ’s decision with its own reasoning, the
IJ’s decision, as supplemented, forms the basis for this
court’s review. See Gjerazi v. Gonzales, 435 F.3d 800, 807 (7th
Cir. 2006). We review the agency’s legal analysis de novo.
See Ahmed v. Ashcroft, 348 F.3d 611, 615 (7th Cir. 2003).
However, our review of the agency’s denial of asylum
is deferential: “[W]e require only that the decision be
supported by reasonable, substantial, and probative
evidence on the record considered as a whole.” Gjerazi, 435
F.3d at 807 (internal quotation marks and citations omit-
ted). We shall reverse an agency’s determination only if
the record compels a contrary result. Bevc v. INS, 47 F.3d
907, 910 (7th Cir. 1995).
In the present case, we believe that the IJ and the BIA
committed legal error with respect to the standard ap-
plied to Ms. Tchemkou’s claim and also that the agency’s
factual conclusions find no support in the record. As noted
in our recitation of the standard of review, the agency is
obligated to consider the evidence of record “as a whole.”
10 No. 06-2638
Gjerazi, 435 F.3d at 807. This court, as well as other courts
of appeals, have cautioned IJs against viewing events in
the record “in isolation, rather than considering what kind
of patterns they composed,” Kantoni v. Gonzales, 461 F.3d
894, 898 (7th Cir. 2006) (collecting cases), and against
employing the “erroneous” “technique of addressing the
severity of each event in isolation, without considering its
cumulative significance,” Poradisova v. Gonzales, 420 F.3d
70, 79 (2d Cir. 2005). Yet, compartmentalization of this
evidence is precisely the approach taken by the IJ. The IJ
viewed the incidents as “sporadic and varied [in] nature,”
as well as “separated one from another.” A.R.55.
The BIA did not correct this error in its opinion. How-
ever, perhaps wary of the approach taken by the IJ,
the Board notes that “[e]ven when analyzed in the aggre-
gate . . . the incidents of which the respondent complained
do not reveal harm that rises to the level of persecution.”
A.R.2. The BIA relies on Liu v. Ashcroft, 380 F.3d 307, 313-14
(7th Cir. 2004), to support this conclusion. We disagree that
Liu provides any support for the conclusion that Ms.
Tchemkou has not suffered past persecution.
In Liu, the petitioner was detained for two days while the
police interrogated her about her sale of unauthorized
literature. The petitioner was not beaten, nor was she
deprived of food and water. However, on two occasions
during her detention, police pulled her hair in an effort to
make her confess to the crimes. One month after her
release, the police ransacked her home to teach her a
lesson. In reviewing these incidents, we stated:
Here, Mei Dan’s detainment was relatively short. As
physical brutality goes, hair-pulling and pushing rank
on the less serious end. The search and ransack was a
singular event and it is unclear if the officials caused
No. 06-2638 11
any serious, permanent damage to her home. Taken as
a whole, it was not improper for the BIA to determine
that these and the other incidents of which Mei Dan
complained are more akin to abusive or harassing
treatment than persecution.
Id. at 313.
The atrocities suffered by Ms. Tchemkou in Cameroon
bear no resemblance to the comparatively minor abuses
suffered by the petitioner in Liu. Unlike the petitioner in
Liu, Ms. Tchemkou was detained under terrible conditions:
She was deprived of food, water and sanitation facilities
and was forced to clean human waste off the floor of the
cell—a crowded cell in which she was the only woman.
Prior to her detention, she had been beaten by police, and,
after her release, she required two weeks of hospitaliza-
tion to recover from the ordeal.
If this were the sum of the abuses suffered by Ms.
Tchemkou, it would be sufficient to establish past persecu-
tion; however, there is more. Ms. Tchemkou was interro-
gated by police and abducted from her apartment in 1998;
she was dragged through the woods, beaten, kicked and
had her earlobe severed. Her hospitalization following
this incident lasted twenty-four days. This ordeal was not
Ms. Tchemkou’s last run-in with Cameroonian police.
Following a peaceful demonstration in 2001, Ms. Tchemkou
again was beaten with a baton and chased away by police.
She was able to escape detention only by seeking sanctu-
ary in a church.
This court has defined persecution as “ ‘punishment’ or
‘the infliction of harm’ which is administered on account
of . . . race, religion, nationality, group membership, or
political opinion . . . .” Asani v. INS, 154 F.3d 719, 723 (7th
12 No. 06-2638
Cir. 1998) (quoting Borca v. INS, 77 F.3d 210, 214 (7th Cir.
1996)). “Although the conduct in question need not neces-
sarily threaten the petitioner’s ‘life or freedom,’ it must
rise above the level of mere ‘harassment’ to constitute
persecution.” Borca, 77 F.3d at 214 (citations omitted). The
record before us conclusively demonstrates that Ms.
Tchemkou suffered something much greater than mere
harassment at the hands of the Cameroonian government;
indeed, she endured serious bodily harm on two occasions,
she was threatened with additional retaliation, and she had
her freedom curtailed. These mirror the types of abuses
that we previously have held to constitute persecution. See,
e.g., Gomes v. Gonzales, 473 F.3d 746, 754 (7th Cir. 2007)
(reversing agency finding of no persecution where peti-
tioner had been beaten, had his home invaded and had
been threatened, and noting that “[t]here is no require-
ment . . . that a person must endure repeated beatings
and physical torment in order to establish past persecu-
tion”); Soumahoro v. Gonzales, 415 F.3d 732, 737 (7th Cir.
2005) (holding that imprisonment for two weeks, during
which time petitioner was beaten, denied adequate food
and water, and had salt rubbed in his wounds, constituted
past persecution); Vaduva v. INS, 131 F.3d 689, 690 (7th Cir.
1997) (noting that “the Board reasonably concluded
Vaduva . . . suffered at least one instance of political
persecution” when “he was beaten up (he was punched,
his face bruised, and his finger broken) by strangers who
told him to stay away from the pro-democratic forces in
the country”). Furthermore, neither the IJ, nor the BIA,
has come forward with any case suggesting the contrary.5
5
In support of his determination that Ms. Tchemkou did not
suffer past persecution under this court’s case law, the IJ relied
(continued...)
No. 06-2638 13
5
(...continued)
on three cases. In the first case, Asani v. INS, 154 F.3d 719, 723
(7th Cir. 1998), the petitioner was detained once for a two-week
period during which he was forced to remain in a standing
position; he also was deprived of sufficient food and water. On
another occasion, he was detained and beaten with a stick; the
beating resulted in the loss of two teeth. The BIA determined
that these incidents did not rise to the level of persecution. This
court remanded because it appeared that the BIA had required
a showing that the petitioner must have suffered “serious
injuries” before being eligible for asylum. In doing so, the
court reiterated the proper standard for determining persecu-
tion: “punishment or infliction of harm that rises above the level
of mere harassment.” Id. at 723 (internal quotation marks
omitted). Although the initial detention in Asani was longer than
that endured by Ms. Tchemkou, this court did not suggest in
Asani (or in any subsequent cases) that the abuses suffered by
Asani established the standard for determining whether an
individual had endured past persecution. Asani is simply an
example of a petitioner who met his burden.
The IJ also relied on Vaduva v. INS, 131 F.3d 689 (7th Cir. 1997).
In Vaduva, the BIA had determined, and this court agreed, that
the petitioner’s experiences in Romania constituted past
persecution and rendered the petitioner presumptively eligible
for asylum. Specifically, the petitioner had been beaten twice,
the more serious of which resulted in bruises and a broken
finger. Nevertheless, the court determined that changed
conditions in Romania since the incidents rebutted the presump-
tion. We fail to see how Vaduva supports the IJ’s conclusion that
Ms. Tchemkou did not meet her burden. The abuses suffered by
Ms. Tchemkou at least match those detailed by the petitioner in
Vaduva.
Finally, in Dandan v. Ashcroft, 339 F.3d 567 (7th Cir. 2003), the
BIA had determined that the petitioner had not suffered past
(continued...)
14 No. 06-2638
The Government acknowledges that Ms. Tchemkou
suffered abuse, but argues that her experiences do not
constitute persecution for several reasons, none of which
we find persuasive. First, the Government maintains that
these incidents “were wholly unrelated and do not sup-
port any pattern of abuse targeting Ms. Tchemkou specifi-
cally.” Appellee’s Br. at 20. The Government provides no
support for the proposition that oppression needs to be
in response to the same issue in order to be considered in
the aggregate. Furthermore, the record does not support
a conclusion that Ms. Tchemkou was not targeted for
retaliation. Far from losing interest in Ms. Tchemkou’s
activities over time, the record reflects that Cameroonian
police consistently responded aggressively to Ms.
Tchemkou’s activities over an eight year period. As well,
5
(...continued)
persecution when, on one occasion, he was detained without
food for three days and was beaten, causing his face to become
swollen. This court held that the evidence did not compel a
contrary finding: “While it is distasteful to have to quantify
suffering for the purposes of determining asylum eligibility,
that is our task. A standard of review that requires our being
compelled to reach a conclusion contrary to the BIA means that
we necessarily search for specifics, not generalities,” id. at 574,
and Dandan had not provided the necessary specifics to compel
a result contrary to that reached by the BIA. However, the IJ
noted that the presentation of evidence by the petitioner in
Dandan differed materially from that of Ms. Tchemkou, who
provided the specifics that the petitioner in Dandan had not,
namely the way in which she was beaten, the injuries she had
suffered, the abhorrent circumstances of her confinement and
the length of her ensuing hospital stay.
No. 06-2638 15
the record establishes that, at least with respect to the 1998
incident, the police abducted and beat Ms. Tchemkou only
after confirming that “you are the person we are looking
for.” A.R.110.
Equally unconvincing is the Government’s contention
that Ms. Tchemkou did not suffer any harassment different
in kind from the general population of Cameroon. Ac-
cording to the Government, hers “were abuses of short
duration that were commonly experienced by the people of
Cameroon, a country that maintains a poor human rights
record. The evidence in the record shows only the existence
of general conditions of political conflict in Cameroon . . . .”
Appellee’s Br. at 21. Again, this assertion is belied by the
record. On three different occasions, Ms. Tchemkou was
singled out for abuse because of her political opposition to
government action. She did not suffer the general depriva-
tions and danger of individuals living in a war-ridden
nation.
Finally, the Government argues that any abuse suffered
by Ms. Tchemkou cannot be considered persecution
because she was able to live without incident for several
years at a time and was able to pursue her education. The
record actually demonstrates the opposite. Ms. Tchemkou
became politically active in 1993. Her initial efforts on
behalf of striking teachers were met with violence, as was
every other effort of hers to speak out against government
oppression. The only time that Ms. Tchemkou did not
experience difficulties was when she spent several years in
exile in Benin and when she was confined to her parents’
house. When she did reappear and express opinions in
opposition to the government, she was severely punished.
The fact is that Ms. Tchemkou suffered two severe
beatings (and other less severe ones) after voicing opposi-
16 No. 06-2638
tion to government policies. One of those beatings (fol-
lowed by three days of incarceration) resulted in her being
hospitalized for 14 days; another beating resulted in her
being hospitalized for 24 days. Both of these incidents
conclusively establish that Ms. Tchemkou has suffered
persecution as a result of her political opinion. She, there-
fore, is entitled to a rebuttable presumption that she will
suffer future persecution if returned to Cameroon, thus
meeting the eligibility requirements for asylum.
B.
Ms. Tchemkou also challenges the BIA’s and the IJ’s
conclusion that she has not demonstrated a well-founded
fear of future persecution if she is returned to Cameroon.
The burden is on Ms. Tchemkou to establish a “reasonable
possibility of future persecution,” Kllokoqi v. Gonzales, 439
F.3d 336, 345 (7th Cir. 2005), a burden that may be satisfied
by showing “that there is even a 10 percent chance that
[s]he will be shot, tortured, or otherwise persecuted,” id.With respect to future persecution, Ms. Tchemkou must
establish that she genuinely fears returning to Cameroon
and that “a reasonable person in [her] circumstances
would fear persecution if forced to return to [her] native
country.” Id.Even absent the rebuttable presumption of future
persecution to which Ms. Tchemkou is entitled, she has met
this burden. Indeed, the evidence compels such a find-
ing. Ms. Tchemkou, and her participation in opposition
activities, are known to the authorities in Cameroon. The
Cameroonian government has attempted to quell her
activism over a number of years and has used brutal tactics
to achieve this objective. The evidence in the record shows
No. 06-2638 17
that, even after her departure from the country, the govern-
ment of Cameroon remained interested in Ms. Tchemkou;
indeed, it issued summonses for her appearance after she
had departed. A.R.335-36. Finally, Ms. Tchemkou’s uncle
submitted a letter in support of her asylum application
explaining that many of the young people with whom
Ms. Tchemkou previously had associated were no longer
alive and that Ms. Tchemkou had reason to fear for her life
as well. A.R.248. In short, all of the evidence in the record
points to a reasonable possibility that Ms. Tchemkou would
be subjected to persecution if she were returned to Camer-
oon.
The Government argues that Ms. Tchemkou’s belief that
she will suffer harm upon her return to Cameroon is
speculative, and that the reasonableness of her belief is
undermined by the fact that her family has lived in Camer-
oon without incident since her departure. The Government
points to Bhatt v. Reno, 172 F.3d 978 (7th Cir. 1999), Lwin v.
INS, 144 F.3d 505 (7th Cir. 1998), and Toptchev v. INS, 295
F.3d 714 (7th Cir. 2002), in support of this argument.
However, none of these cases presented a situation sim-
ilar to that of Ms. Tchemkou.
In Bhatt, the petitioner was claiming persecution on the
basis of his religion—a trait he shared with other family
members. Consequently, the fact that family members in
his home country had not suffered harm was probative of
what the petitioner’s experience would be if returned to
his home country.
Similarly, in Lwin, the petitioner claimed that he would
suffer future persecution because the Burmese government
would “impute” to him the political opinions of his eldest
son. However, petitioner’s wife and other sons had re-
18 No. 06-2638
mained in Burma without incident. Consequently, the
petitioner’s fears were merely speculative. See Lwin, 144
F.3d at 510.
Finally, in Toptchev, this court agreed that any presump-
tion of future persecution was rebutted by the State
Department report, which recounted Bulgaria’s movement
toward democracy since the petitioners’ departure. This
conclusion was bolstered by the fact that other family
members, some of whom also had been active in speak-
ing out against the former communist regime, had lived
in Bulgaria undisturbed. See Toptchev, 295 F.3d at 722.
Here, however, there is no evidence that Cameroon’s
human rights record has improved since Ms. Tchemkou’s
departure, nor is there any evidence that Ms. Tchemkou’s
parents or siblings were involved in the type of protests in
which she had participated while in Cameroon. Conse-
quently, the fact that her family members have lived in
Cameroon without incident does not speak to how Ms.
Tchemkou would be treated upon her return.
C.
Ms. Tchemkou also challenges the IJ’s and the BIA’s
conclusion that she is not entitled to relief under the CAT.
8 C.F.R. § 208.16(c)(2) sets forth the standard for obtaining
relief under the CAT: “The burden of proof is on the
applicant . . . to establish that it is more likely than not that
he or she would be tortured if removed to the proposed
country of removal.” The regulations define torture 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, punish-
No. 06-2638 19
ing him or her for an act he or she or a third 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. § 1208.18(a); see also Mabasa v. Gonzales, 440 F.3d
902, 907 (7th Cir. 2006) (quoting regulation), superseded on
other grounds by Mabasa v. Gonzales, 455 F.3d 740 (7th Cir.
2006). In making the determination whether an alien has
met her burden, the regulations direct that the following
factors “shall be considered”: evidence of past torture;
evidence that the applicant could relocate to a different
part of her home country; evidence of “gross, flagrant or
mass violations of human rights within the country of
removal”; and other relevant country conditions. See 8
C.F.R. § 208.16(c)(3)(i)-(iv).
Here again we believe that the record compels a finding
that Ms. Tchemkou is entitled to relief under the CAT.
There is no question that her prior experiences in Camer-
oon constituted torture as defined by the regulations. Both
Ms. Tchemkou’s initial run-in with police, which included
a beating and a detention under deplorable conditions, as
well as her 1998 abduction and beating, only could be
described as the intentional infliction of severe pain or
suffering for the purposes of punishing Ms. Tchemkou’s
political activity and preventing such behavior in the
future. Furthermore, other regulatory considerations
strongly suggest that Ms. Tchemkou will suffer torture if
returned to Cameroon: She has not been able to escape
government retaliation regardless of her location in
20 No. 06-2638
Cameroon, and Cameroon admittedly continues to have a
poor civil rights record. On this record, it is more likely
than not that Ms. Tchemkou will be tortured if removed
to Cameroon.
Conclusion
In sum, the record compels a conclusion that Ms.
Tchemkou has suffered past persecution and will suffer
future persecution if returned to Cameroon. Additionally,
the record establishes that Ms. Tchemkou has endured
torture and likely will endure additional torture if re-
turned to Cameroon. We therefore grant the petition for
review. We reverse the decision of the BIA and remand this
case for additional proceedings consistent with this opin-
ion.
PETITION GRANTED; REVERSED and REMANDED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
No. 06-2638 21
USCA-02-C-0072—7-31-07