Diallo, Mamadou v. Ashcroft, John D. ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1876
MAMADOU DIALLO
Petitioner,
v.
JOHN D. ASHCROFT,
Respondent.
____________
On Petition to Review an Order of the
Board of Immigration Appeals.
No. A76-672-318
____________
ARGUED JANUARY 13, 2004—DECIDED AUGUST 26, 2004
____________
Before BAUER, MANION, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Mamadou Diallo, a native citizen
of Mauritania, requested that the Immigration and Natural-
ization Service (INS)1 grant him asylum. The Agency refused,
reasoning that Diallo had not been persecuted in Maurita-
nia, did not have a well-founded fear of future persecution
1
Congress transferred the functions of the former INS to the
Department of Homeland Security (DHS) on March 1, 2003. The
transfer does not effect any legal issue in the case, and the DHS
did not exist during any of the underlying administrative pro-
ceedings. To avoid confusion, however, we will refer to the former
INS as the “Agency.”
2 No. 03-1876
there, and had firmly resettled in Senegal prior to his
arrival in the United States. Because the Agency (1) ignored
its own regulations regarding the proper factors to consider
in a firm resettlement analysis, (2) failed to make a credibil-
ity determination, and (3) failed to support its decision on
fear of future prosecution with reasonable or substantial
evidence, we must remand for further proceedings consis-
tent with this opinion.
Diallo was born in Mauritania in 1958 and lived there for
the first thirty-five years of his life. According to Diallo’s
testimony, in 1986 he joined the African Liberation Force of
Mauritania (FLAM) an organization seeking to fight against
slavery, torture, and discrimination in Mauritania. Diallo’s
brother, Saidou, was also a member of FLAM, and because
of his leadership role in the organization, in approximately
1989 or 1990, he was arrested and imprisoned for six
months. Through newspaper accounts, Diallo learned that
Saidou had been tortured and eventually killed while in
prison. Diallo himself was not a leader in the organization;
he did not pass out political leaflets or brochures and did
not speak at political rallies, but he did support the org-
anization monetarily from the proceeds of his work as a
merchant and did not hide his support for FLAM.
In approximately May 1993, uniformed police officers
arrived at Diallo’s house at night searching for a member of
FLAM. They handcuffed him, searched his apartment,
confiscated all of his documents, and took him to jail with-
out the opportunity to appear before a judge or to be repre-
sented by a lawyer. For the six months that he remained in
jail, he was forced to perform hard labor, cutting and
hauling wood and digging holes. During one incident when
he was working too slowly, a guard slashed his arm with a
knife.
After six months, Diallo’s captors released him and im-
mediately placed him on a boat to Senegal with nothing but
his Mauritanian national identification card. Diallo spent
four years in Senegal “selling small things ” and living with a
No. 03-1876 3
former acquaintance from Mauritania in a rented apart-
ment. He attended church, but had no familial ties in
Senegal. Although he had neither a work permit nor official
permission to remain there, he was not bothered by the
Senegalese government. Diallo left Senegal and traveled as
a stowaway on a boat to Baltimore, Maryland where he
arrived in June 1997. Two months later, he submitted his
application for asylum, withholding of removal, and for
protection under the United Nations Convention Against
Torture and Other Forms of Cruel, Inhuman or Degrading
Treatment or Punishment (CAT).2 Diallo appeared for his
scheduled asylum interview, but because his privately hired
interpreter never arrived and Diallo could not participate in
the interview, he was deemed to have failed to appear, he
was charged with removal, and his asylum application was
referred to an immigration judge pursuant to 8 C.F.R.
§ 1208.14(c)(1).
The written decision by the immigration judge failed to
make any credibility determinations, but rather assumed
that even if Diallo had testified credibly, he would not be
entitled to relief from deportation. The immigration judge
found that Diallo’s detention and expulsion did not amount
to persecution, that he did not meet his burden of demon-
strating a well-founded fear of future persecution, and that
he was ineligible for asylum in any case because he had
firmly resettled in Senegal prior to arriving in the United
States. Consequently, the immigration judge also found that
Diallo had not met the higher burden of proof required for
withholding of removal and for protection under CAT.3
2
Pursuant to 8 C.F.R. § 1208.3(b)(3), an application for asylum
is also considered an application for withholding of removal.
3
On appeal, Diallo does not challenge the immigration judge’s
denial of his request for withholding of removal or his automatic
application for relief under CAT. Those issues, therefore, have
been waived. See Vladimirova v. Ashcroft, No. 03-1852, 2003 WL
(continued...)
4 No. 03-1876
Diallo appealed the immigration judge’s decision to the
Board of Immigration Appeals (BIA), which summarily af-
firmed the decision of the immigration judge, making it the
decision of the agency for purposes of our appellate review.
8 C.F.R. § 1003.1 (e)(4); Szczesny v. Ashcroft, 358 F.3d 464,
465 (7th Cir. 2004). That decision held that the final blow
to Diallo’s asylum claim was that he had firmly resettled in
Senegal prior to his arrival in the United States. “Firm
resettlement,” however, is an odd tool to use to strike the
final blow to an asylum claim, since under the current
statutory iteration of the doctrine of firm resettlement, an
immigration court must deny asylum to any refugee if “the
alien was firmly resettled in another country prior to arriv-
ing in the United States.” 8 U.S.C. § 1158(b)(2)(A)(vi).4 That
being said, it seems the logical place to begin rather than
end an assessment of whether a refugee is entitled to
asylum in this country. If the doctrine of firm resettlement
sounds the death knell on the asylum-seeker’s claim, there
is simply no need to continue on to determine whether an
asylum-seeker was the victim of past persecution or has a
well-founded fear of future persecution.
The question of how to determine whether a refugee has
firmly resettled in another country prior to her arrival in
3
(...continued)
23676865 at *7 (7th Cir. July 26, 2004).
4
Prior to 1990, firm resettlement was but one factor that an
immigration judge weighed in deciding whether to grant asylum.
See Abdille v. Ashcroft, 242 F.3d 477, 483 n.4 (3d Cir. 2001)
(reviewing the history of the firm resettlement bar to asylum
claims). Consequently, the immigration judge’s citation to Matter
of Soleimani, 20 I.&N. Dec. 99 (BIA 1989) for the proposition that
“firm resettlement in another country is a factor to be evaluated
in determining whether asylum should be granted as a matter of
discretion” is incorrect. Because firm resettlement is currently a
mandatory bar to the grant of asylum, it is no longer merely “one
factor” to be considered.
No. 03-1876 5
the United States appears to be an issue of first impression
for this circuit. The only published Seventh Circuit opinion
discussing firm resettlement was decided in 1954, long be-
fore the enactment of the current statute and agency rules
on the subject. See United States v. Rumsa, 212 F.2d 927(7th Cir. 1954). Although the statute mandating the denial
of asylum for refugees who have firmly resettled (8 U.S.C.
§ 1158(b)(2)(A)(vi)) does not itself define “firm resettlement”
or offer instruction on how firm resettlement should be
determined, the agency regulations set forth in straight-
forward language how an immigration judge should proceed
in making that determination. 8 C.F.R. § 208.15. The
regulations provide that:
[a]n alien is considered to be firmly resettled if, prior to
arrival in the United States, he or she entered into
another country with, or while in that country received,
an offer of permanent resident status, or some other form
of permanent resettlement unless he or she establishes:
(a) That his or her entry into that country was a nec-
essary consequence of his or her flight from pers-
ecution, that he or she remained in that country
only as long as was necessary to arrange onward
travel, and that he or she did not establish signifi-
cant ties in that country; or
(b) That the conditions of his or her residence in
that country were so substantially and consciously
restricted by the authority of the country of refuge
that he or she was not in fact resettled. In making
his or her determination, the asylum officer or immi-
gration judge shall consider the conditions under
which other residents of the country live; the type
of housing, whether permanent or temporary, made
available to the refugee; the types and extent of em-
ployment available to the refugee; and the extent to
which the refugee received permission to hold
6 No. 03-1876
property and to enjoy other rights and privileges,
such as travel documentation that includes a right
of entry or reentry, education, public relief, or natu-
ralization, ordinarily available to others resident in
the country.
8 C.F.R. § 208.15. After the government meets its initial
burden of demonstrating firm resettlement, the asylum-
seeker may rebut the presumption by presenting evidence
to the contrary. Musssie v. INS, 172 F.3d 329, 332 (4th Cir.
1999); Cheo v. INS, 162 F.3d 1227, 1229 (9th Cir. 1998);
Salazar v. Ashcroft, 359 F.3d 45, 50 (1st Cir. 2004). For the
refugee who has failed to rebut the presumption of firm
resettlement, all hope is not lost. She may also demonstrate
that she falls within one of the two exceptions to firm reset-
tlement articulated in section (a) and (b) of the regulation.
8 C.F.R. § 208.15(a), (b).
The primary and initial consideration, therefore, is a simple
one—whether or not the intermediary country has made
some sort of offer of permanent resettlement. The regula-
tions do allow the immigration judge to consider factors such
as the length of time spent in the country, housing, and the
type and extent of the refugee’s employment, among others,
but only after making a preliminary finding of a genuine
offer vel non of permanent resettlement, and only then
when the applicant seeks to demonstrate that she falls into
one of the two exceptions. 8 C.F.R. § 208.15. See Rife v.
Ashcroft, 374 F.3d 606, 610-11 (8th Cir. 2004); Abdille, 242
F.3d at 486.
As we noted earlier, see footnote 4, supra, this was not
always the case. Prior to 1990, “firm resettlement” was just
one of the factors to be considered in the Agency’s exercise
of discretion in granting asylum. See Rosenberg v. Yee Chien
Woo, 402 U.S. 49, 56, 91 S. Ct. 1312, 28 L. Ed. 2d 592 (1971);
Abdille, 242 F.3d at 483 n.4. Under a discretionary scheme,
where firm resettlement is but one factor to consider in
No. 03-1876 7
granting or denying an asylum application, an adjudicator
could consider factors such as the length of stay, ability to
work, familial ties, economic conditions in the third country,
and the like as other factors that militate for or against a
grant of asylum. In 1990, however, the INS amended its
regulations to make firm resettlement a mandatory bar to
asylum. 8 C.F.R. § 208.14 (1990). Later, Congress codified
the mandatory prohibition on grants of asylum to firmly
resettled refugees when it passed the Illegal Immigration
Reform and Illegal Immigrant Act of 1996. 8 U.S.C.
§ 1158(b)(2)(A)(vi). These new regulations “reoriented the
central inquiry of firm resettlement to focus the adjudicator
on the actual existence vel non of an offer of permanent
resettlement.” Robert D. Sloane, An Offer of Firm Resettle-
ment, 36 Geo. Wash. Int’l L. Rev. 47, 57 (2004). Such a focus
is consistent with the goals of asylum law. As the Third
Circuit points out, “[a]bsent some government dispensation,
an immigrant who surreptitiously enters a nation without
its authorization cannot obtain official resident status no
matter his length of stay, his intent, or the extent of the
familial and economic conditions he develops. Citizenship
or permanent residency cannot be gained by adverse
possession.” Abdille, 242 F.3d at 487.
Despite the metamorphosis in the focus of firm resettle-
ment inquiries, some circuits continue to hang on to the
“totality of the circumstances” test, looking at the applicant’s
length of stay and social and economic ties in the third
country either instead of or on par with governmental offers
of permanent resettlement. See, e.g., Mussie, 172 F.3d at
331-32, Cheo, 162 F.3d at 1229. The Third and Eighth
Circuits’ obedience to the language and purpose of the reg-
ulation seems the more rational path, and for this reason
we agree that the primary and most important inquiry in
any analysis of firm resettlement is whether or not the
stopover country has made some type of offer of permanent
resettlement. Abdille, 242 F.3d at 480; Rife, 374 F.3d at
610-11.
8 No. 03-1876
We recognize, as did the Third Circuit, that “circum-
stances may arise in which the INS may not be able to
secure direct evidence of a formal government offer of some
type of permanent resettlement, and thus may be [sic] not
be able to make the prima facie showing of firm resettle-
ment under § 208.15 in that manner.” Abdille, 242 F.3d at
486-87. In that case, the Third Circuit noted in dicta, the
immigration judge or BIA “may find it necessary to rely on
non-offer-based factors, such as the length of an alien’s stay
in a third country, the alien’s intent to remain in the
country, and the extent of the social and economic ties
developed by the alien, as circumstantial evidence of a
government-issued offer.” Id. at 487. The Third Circuit sees
these non-offer-based elements as surrogates for direct evi-
dence of a formal offer only “if they rise to a sufficient level
of clarity and force, which we need not delineate here.” Id.The immigration judge in Diallo’s case, however, did not
consider whether there was an offer at all. The immigration
judge’s determination that Diallo had permanently resettled
in Senegal was based entirely on his two-sentence finding
that: “prior to his arrival in the United States, [Diallo] resided
in neighboring Senegal for four years. Indeed, the respon-
dent worked as a merchant and lived with a friend and a
family member.” In short, the immigration judge relied on
three factors in determining that Diallo had firmly resettled:
(1) his four-year stay, (2) his work as a merchant, and (3) the
fact that he shared an apartment with a friend and family
member. Nothing suggests that the immigration judge was
using these factors as indirect evidence of a formal offer.
Rather, it seems clear that the immigration judge simply
ignored the Agency’s own regulations requiring the immi-
gration judge to consider the existence vel non of an offer of
permanent resettlement, and completely ignored Diallo’s
testimony that he had no such formal offer or permission to
live or work in Senegal. (R. at 131, 137, 139).
No. 03-1876 9
The government argues that residency documents are not
required in order for the government to establish firm
resettlement, and cites Cheo for the proposition that the
passage of time alone is enough to establish “some other
type of permanent resettlement.”5 Id. 162 F.3d at 1229. But
Cheo is not the case to turn to in order to alleviate our
concern that the immigration judge failed to consider any
evidence or lack thereof of an offer vel non of permanent
resettlement. In fact, in Cheo, the Ninth Circuit considered
the length of the stay only after concluding that there was
no direct evidence one way or another as to whether the
applicants had the right to return to the third country. Id.
at 1229. In this way, its analysis was not much different
from the Third Circuit’s in Abdille when it announced that
non-offer based elements may be used as surrogates for di-
rect evidence only when there is no evidence of some formal
offer of permanent resettlement. Abdille, 242 F.3d at 486-
87. Neither the Ninth Circuit’s approach in Cheo nor the
Third Circuit’s approach in Abdille allows an immigration
judge to ignore completely the regulation’s requirement to
consider the existence of a formal offer or the lack thereof.
The applicants in the Cheo case did not present any evidence
of a lack of a formal offer. In this case, Diallo has presented
evidence to the contrary. He presented undisputed testi-
5
The government seems to be ignoring the language of the stat-
ute that requires an “offer” of “some form of permanent resettle-
ment.” 8 C.F.R. § 208.15. The word “offer” certainly implies some
form of action on the part of the third country government. As the
Third Circuit pointed out, citizenship or permanent residency
cannot be gained by adverse possession—by surreptitiously entering
a country and hiding from detection for many years. Abdille, 242
F.3d at 487. The “some other type of permanent resettlement” lan-
guage, likely was added to account for the great variety in names
and types of permanent offers of settlement in countries around
the globe and was not meant to be a catch-all that would undue
the requirement of a governmental “offer.”
10 No. 03-1876
mony that he had no legal right to live or work in Senegal.6
The immigration judge erred by failing to consider this
evidence at all.
A finding of firm resettlement is a factual determination
that must be upheld if it is supported “by reasonable, sub-
stantial, and probative evidence on the record considered as
a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S. Ct.
812, 117 L. Ed. 2d 38 (1992); Krouchevski v. Ashcroft, 344
F.3d 670, 673 (7th Cir. 2003). We reverse only if the
evidence is such that a reasonable fact-finder would be
compelled to reach an opposite conclusion. Krouchevski, 344
F.3d at 673. This “substantial evidence” review is highly
deferential and does not allow this court to overturn an agency
determination simply because we would have decided the
case differently. Capric, 355 F.3d at 1086. Nevertheless, the
immigration judge below failed to consider the single factor
that agency regulations require him to consider. Had he
done so he would be, as we are, compelled to find that
Diallo had not firmly resettled in Senegal.
Even if the immigration judge were applying the now out-
dated “totality of the circumstances” analysis, his finding of
firm resettlement still would not be supported by sub-
stantial evidence and the reasonable fact-finder would be
compelled to make a finding to the contrary. Most signifi-
cantly, the immigration judge erred by ignoring Diallo’s
testimony that he had no documents permitting him to live
6
“The testimony of the applicant [for asylum], if credible, may be
sufficient to sustain the burden of proof without corroboration.” 8
C.F.R. § 208.13(a). See Kourski v. Ashcroft, 355 F.3d 1038, 1039
(7th Cir. 2004), Capric v. Ashcroft, 355 F.3d 1075, 1085 (7th Cir.
2004), Korniejew v. Ashcroft, 371 F.3d 377, 382 (7th Cir. 2004),
Uwase v. Ashcroft, 349 F.3d 1039, 1041 (7th Cir. 2003); Georgis v.
Ashcroft, 328 F.3d 962, 969 (7th Cir. 2003). The immigration judge
was simply wrong when he concluded that the Ninth Circuit’s
parallel holding did not apply in this Circuit. See (R. at 106-07).
No. 03-1876 11
or work in Senegal. An immigration judge may not simply
ignore record evidence that favors the applicant’s case. See
Vujisic v. INS, 224 F.3d 578, 581 (7th Cir. 2000) (immi-
gration judge and BIA erred by ignoring evidence of feared
persecution and current conditions in applicant’s native
country). Diallo’s testimony, if credible (and the immigration
judge never found that it was not) was “sufficient to sustain
the burden of proof without corroboration.” 8 C.F.R.
§ 208.13(a). See footnote 6, supra. Furthermore, in assess-
ing Diallo’s social and familial ties, the immigration judge
found it significant that Diallo lived with a friend and
family member while in Senegal. In the first instance, the
immigration judge’s factual determination was simply
incorrect. While in Senegal, Diallo lived with a man he had
met in Mauritania. The record firmly establishes that the
men were not related. (R. at 131-32).7 Moreover, we fail to see
how living with a Mauritanian acquaintance in Senegal
offers any evidence whatsoever of firm resettlement.
Consequently, we are left with a four-year stay and work
as a “seller of small things”—the type of itinerant work that
many refugees pick up in hopes of making ends meet until
they reach their final destination. Four years does indeed
constitute a lengthy stay, but not so lengthy that it, in and
of itself, could support a finding of firm resettlement. The
cases from our sister circuits—even those employing a
“totality of the circumstances” test—have never held that a
stay of this length in and of itself compels a finding of firm
resettlement. The closest case comes from the Ninth Cir-
cuit’s decision in Cheo v. INS, discussed earlier, which held
7
Diallo initially appeared to testify that the man was related, but
after a confusing exchange of questions and answers about how
the man was related, the interpreter stopped the questioning to
tell the judge that he did not know what the word “relative”
meant. Once the confusion was remedied, Diallo testified clearly
that the two men were not related. (R. at 131-32).
12 No. 03-1876
that a peaceful, undisturbed stay of three years in a third
country was enough to “establish[ ] that the ground of ‘firm
resettlement’ in [the third country] might apply” thus
shifting the burden to the applicants to prove that they
were not firmly resettled. Id. at 1229. The applicants in
that case did not present any evidence to the contrary.
Significantly, the Ninth Circuit considered the length of the
stay only after concluding that there was no direct evidence
one way or another as to whether the applicants had the
right to return to the third country. Id. In this case, Diallo
has presented evidence to the contrary. He presented
undisputed testimony that he had no legal right to live or
work in Senegal.
The other circuit court cases cited by the government in
its brief (the immigration judge cited no cases other than
the no-longer-valid decision of the BIA in Matter of Soleimani,
20 I.&N. Dec. 99 (BIA 1989)) are no more helpful in support-
ing the immigration judge’s conclusion that Diallo had
firmly resettled in Senegal, as all contained compelling
evidence of firm resettlement other than the mere passage
of time. See Mussie, 172 F.3d at 332 (petitioner lived in
Germany for four years; German government gave petitioner
asylum, travel documents, government assistance for trans-
portation, food, rent and education; petitioner held a job,
paid taxes and rented her own apartment); Vang v. INS,
146 F.3d 1114, 1115 (9th Cir. 1998) (appellate court offered
no details as to the factors the BIA applied in determining
that petitioner was resettled, but in addition to living in
France from the age of four to sixteen, applicant arrived in
France as part of an official United Nations refugee pro-
gram and also received French travel documents); Yang v.
INS, 79 F.3d 932, 934 (9th Cir. 1996) (for purposes of the
appeal, petitioners conceded that they were firmly resettled
in France and argued only that the regulation on firm
resettlement was beyond the authority of the INS; conse-
quently the Yang Court had no opportunity to comment on
No. 03-1876 13
the factors that constituted the Yang’s firm resettlement in
France.); Farbakhsh v. INS, 20 F.3d 877, 880 (8th Cir.
1994) (petitioner lived in Spain for four years, intended to
stay there as evidenced by his application for asylum, and
had strong familial ties there); Abdalla v. INS, 43 F.3d
1397, 1399 (10th Cir. 1994) (petitioner lived in and possessed
a residence visa/permit for the United Arab Emirates); see
also Rife, 374 F.3d at 609, 611 (finding firm resettlement
where Israeli government offered petitioners permanent re-
settlement, issued certificates evidencing citizenship, and
issued passports, none of which had ever been revoked);
Salazar v. Ashcroft, 359 F.3d 45, 47-48 (1st Cir. 2004) (finding
firm resettlement where petitioner lived in Venezuela for
fourteen months, worked and rented an apartment, and
received a Venezuelan passport with a resident stamp). In
short, we cannot find a single published circuit court opin-
ion that relied on as little as this immigration judge relied
on to determine that an applicant for asylum had firmly
resettled in a third country. We are compelled, therefore, to
reverse the Agency’s determination on firm resettlement.
Because we find that Diallo was not firmly resettled in
Senegal, we can now turn to his claim that he is entitled to
a grant of asylum. To qualify for refugee status in this
country, a petitioner has the burden of demonstrating that
she either has endured past persecution or has a well-
founded fear of future persecution based on one of the stat-
utorily protected categories. See 8 C.F.R. § 208.13(b); Olowo
v. Ashcroft, 368 F.3d 692, 700-01 (7th Cir. 2004). An
applicant who successfully establishes past persecution is
presumed to have a well-founded fear of future persecu-
tion—a presumption that the Agency can rebut by demon-
strating a change in circumstances or a reasonable ability
on the applicant’s part to relocate within the applicant’s
country. 8 C.F.R. § 208.13(b)(1); Capric, 355 F.3d at 1084. In
the alternative, the applicant can establish a well-founded
fear of future persecution if the fear is “subjectively genuine
14 No. 03-1876
and objectively reasonable in light of the credible evidence.”
Capric, 355 F.3d at 1084-85.
Although the statute does not define “persecution,” this
circuit has described it as “punishment or the infliction of
harm for political, religious, or other reasons that this country
does not recognize as legitimate.” DeSouza v. INS, 999 F.2d
1156, 1158 (7th Cir. 1993). It must be more than mere
“harassment,” and can include, “detention, arrest, interro-
gation, prosecution, imprisonment, illegal searches, confis-
cation of property, surveillance, beatings, torture, behavior
that threatens the same, and non-life-threatening behavior
such as torture and economic deprivation if the resulting
conditions are sufficiently severe.” Capric, 355 F.3d at 1084
(internal citations omitted).
Were we reviewing Diallo’s claim de novo, we might be in-
clined to find that, after facing six months unlawful im-
prisonment combined with hard labor, physical torture (re-
call that Diallo’s arm was slashed when he failed to work as
hard as was required), and expulsion from the country,
Diallo was the victim of past persecution in Mauritania.
After all, the immigration judge compared Diallo’s case to
three cases where this court had declined to find past pers-
ecution, but none of the factual scenarios in those cases came
even close to the lengthy detention and physical hardship
found in Diallo’s case. In Borca v. INS, 77 F.3d 210, 213
(7th Cir. 1996), the petitioner was subject to an illegal search,
was interrogated twice, and received threatening phone
calls, but she never was imprisoned, forced to undergo hard
labor, or physically tortured. This court upheld the immi-
gration judge’s finding that Borca was harassed and intim-
idated, but not persecuted. Id. at 215. Similarly, Barbara
Skalak was jailed twice for interrogation, but each incarcer-
ation lasted for only three days—events that this court
concluded were “mild persecution” falling short of the stat-
utory criteria for “persecution” that triggers a grant of asylum.
Skalak v. INS, 944 F.2d 364, 365 (7th Cir. 1991). And in the
No. 03-1876 15
third case, Cuevas v. INS, 43 F.3d 1167, 1170-71 (7th Cir.
1995), the petitioners were unable to make any connection
between the threats made against them (and the death of
their nephew and the stabbing of their son) and the armed
wing of the communist party of the Philippines (NPA). Al-
though they were involved in a bitter land dispute with
squatters whom they believed to be acting on behalf of the
NPA, there was no evidence that the squatters were acting
on behalf of a governmental power, or even if they were,
that the squatting amounted to persecution. Id. at 1171.
Other cases from this circuit support the view that Diallo’s
treatment did amount to past persecution. In Asani v. INS,
154 F.3d 719, 724 (7th Cir. 1998), we found a single deten-
tion in harsh conditions where the police beat the petitioner
and knocked out his teeth sufficient to establish past pers-
ecution. And in Vaduva v. INS, 131 F.3d 689, 690 (7th Cir.
1997) we were convinced that the police had persecuted Mr.
Vaduva when, during a single beating, they punched him in
the face and broke his finger. Historically, short detentions
or detentions without physical abuse seem to have been less
apt to reach the “persecution” threshold required by this
court. See Dandan v. Ashcroft, 339 F.3d 567, 573-74 (7th
Cir. 2003) (one-time three-day detention with beatings and
food deprivation does not compel a finding of past persecu-
tion); Zalega v. INS, 916 F.2d 1257, 1260 (7th Cir.1990)
(applicant was interrogated on several occasions, arrested,
detained once for thirty-six hours, and had home searched
and property confiscated, but was never beaten, tortured, or
forced to perform hard labor).8
8
We do not mean to imply that physical abuse and hardship is
required in order to establish past persecution. A six-month
detention may very well be sufficient in and of itself to establish
past persecution. These cases demand an individualized assess-
ment of all of the underlying facts of each applicant’s claim.
16 No. 03-1876
Our review, however, is not de novo. Credibility determi-
nations, findings of past persecution, and findings of a well-
founded fear of future persecution are all factual determina-
tions owed our strong deference. Medhin v. Ashcroft, 350
F.3d 685, 688-89 (7th Cir. 2003). Because we review the
BIA’s factual determinations under this highly deferential
standard, we may not reverse a finding of no past persecu-
tion simply because we believe it was wrongly decided.
Rather, we must be convinced that the evidence compels a
decision contrary to the Board’s. Elias-Zacarias, 502 U.S. at481 n.1; Dandan, 339 F.3d at 572. It is a high standard to
meet, and ordinarily we would be compelled to defer to the
immigration judge’s finding here. But the limits of our defer-
ential standard of review are tested when we are asked to
defer to findings of fact that the immigration judge has not
made. In this case the immigration judge failed to make any
credibility findings at all. Instead, the decision states, “even
assuming that the respondent’s claims are true,” and then
continues on to conclude that Diallo has not established that
he suffered any past persecution. (R. at 43). In this case,
however, the immigration judge’s decision is so infected
with doubts about Diallo’s credibility that it is difficult to
determine whether the immigration judge really did assume
the truth of his claims.
There are many examples of the immigration judge’s con-
tradictory assessments regarding Diallo’s credibility. For
example, in the text the immigration judge noted that Diallo
testified that his brother was arrested, tortured, and killed
for being a leader of FLAM, but then he stated in a footnote,
“[i]t befuddles the Court as to why the Mauritanian authori-
ties would detain the respondent’s brother, who was a ‘leader,’
in 1989, but not seek out the respondent until 1993.” (R. at
42). After describing in the text how Diallo was “expelled”
from Mauritania (the doubting quotation marks in original),
the immigration judge noted that, “[t]he respondent,
however, testified that he paid for transportation from
Mauritania to Senegal.” (R. at 42). Another footnote reads:
No. 03-1876 17
The respondent did not provide any documentation of
his Mauritanian citizenship until the date of the hear-
ing. The Court also notes that the State Department
has stated that judges should be wary of “Mauritanian”
asylum applicants because nationals of other African
countries, notably Senegal, are seeking to pass themselves
off as Mauritanian because they feel their chances of
obtaining asylum are greater. See Asylum Profile at 6.
Moreover, the respondent was unable to produce any
other document other than his identification card.
(R. at 43). Finally, the immigration judge noted, in a foot-
note, that “[i]t is peculiar that the respondent was ‘expelled’ in
1993, since all the relevant information shows that the
mass exodus took place in 1989-1991.” (Id.). The decision is
so riddled with doubts regarding the veracity of Diallo’s
claim, that we cannot ascertain whether the immigration
judge simply disbelieved all or some of Diallo’s assertions or
whether he actually assumed the truth of the testimony but
nevertheless concluded that Diallo’s six months of im-
prisonment, hard labor, physical torture, and expulsion did
not amount to persecution.
This type of confusion over the immigration judge’s cre-
dibility determination does not necessarily compel a conclu-
sion that Diallo is entitled to asylum, but nevertheless
warrants a remand to untangle the basis for the immigra-
tion judge’s decision. See Guchshenkov v. Ashcroft, 366 F.3d
554, 559 (7th Cir. 2004) (“A remand is required because the
immigration judge’s analysis of their application is unrea-
soned. She ‘determined that the respondent is basically
credible; however, his testimony is not inherently persua-
sive.’ We do not understand what this means.”); Muhur v.
Ashcroft, 355 F.3d 958, 961 (7th Cir. 2004) (failure to make
a credibility determination regarding whether petitioner
was or was not a Jehovah’s Witness requires remand); Niam
v. Ashcroft, 354 F.3d 652, 658 (7th Cir. 2004) (immigration
judge’s failure to make a credibility determination left a
18 No. 03-1876
“yawning void” in the decision); see also Krastev v. INS, 292
F.3d 1268, 1279 (10th Cir. 2002) (“we caution the BIA that
its practice of simply assuming, without deciding, credibility
is not favored”); Cordon-Garcia v. INS, 204 F.3d 985, 993
(9th Cir. 2000) (statements such as “even were we to
assume that the respondent was a credible witness” do not
allow the reviewing court to “undertake a meaningful analysis
of Petitioner’s credibility and its effect on her application for
asylum”).
The confusion created by the immigration judge’s failure
to make a credibility finding infected his analysis of Diallo’s
fear of future persecution as well. Recall that once an ap-
plicant proves past persecution, she creates a rebuttable
presumption that she has a well-founded fear of future
persecution. Capric, 355 F.3d at 1084. Even if an applicant
cannot create a presumption of a well-founded fear of future
persecution by affirmatively demonstrating past persecu-
tion, she can demonstrate a well-founded fear of persecution
if the fear is subjectively genuine and objectively reason-
able. Id. at 1085. The subjective fear component turns
largely on the applicant’s credibility and therefore a
credibility determination is vital to an assessment of the
applicant’s well-founded fear of future persecution. See id.
Again, the immigration judge waffled back and forth on
credibility, concluding on the one hand that “[t]he respondent
has also not established that he was a member of FLAM, or
what exactly FLAM has or has not done in Mauritania.” (R.
at 44). But then, stating,
even assuming arguendo that the respondent has estab-
lished that he is a member of the “opposition group,”
FLAM, the authorities allow many opposition groups
and non-government organizations to publicly express
views contrary to those held by the government.
(R. at 44) (citing the Bureau of Democracy, Human Rights
and Labor, U.S. Dept. Of State, Mauritania—Profile of
No. 03-1876 19
Asylum Claims & Country Conditions (“Asylum Report”)).
Again, we simply cannot tell whether the immigration judge
was crediting Diallo’s claims or not. Because direct authen-
tication or certification of an alien’s testimony is difficult, if
not impossible to find, the credibility analysis is vital to
determining the validity of an applicant’s claim. See Capric,
355 F.3d at 1085.
Our concerns are not limited to the credibility dodge. We
have recently launched harsh criticism on immigration judges’
over-reliance on State Department Asylum and Country
Reports, noting the potential for bias in the reports and the
inability of asylum-seekers to question the conclusions
contained therein. Niam, 354 F.3d. at 658-69. In any case,
the Asylum Report’s conclusion that the authorities allow
“many” opposition groups to publically disagree with the
government is of no solace to Diallo if FLAM is not one of
the “many” whose criticism is tolerated. The immigration
judge’s reference to this one inconclusive sentence of the
Asylum Profile simply is not the type of reasoned analysis
that is sufficient to support an administrative decision that
Diallo does not have a well-founded fear of future persecu-
tion based on his political beliefs. See Guchshenkov, 366
F.3d at 560.
The other half of the immigration judge’s decision on well-
founded fear of future persecution dwells on the fate of
those expelled from Mauritania during a period of ethnic
cleansing. Diallo’s claim, however, is that he was expelled
based on his political beliefs (his support of FLAM) rather
than on his race and ethnicity per se. Although it is true that
Diallo also implies that he was expelled from Mauritania
because of racism, we understand this to mean that he was
expelled because the organization he supported—FLAM
—supported the rights of the historically enslaved Black
Moors in Mauritania. He may very well have been expelled
because of his own race and ethnicity in addition to his mem-
bership in FLAM, but according to his own report, when the
20 No. 03-1876
officers came to his home in the middle of the night, con-
fiscated his papers and hauled him to prison, they yelled at
him “confirm[ing] that [Diallo] was a member of FLAM.” (R.
at 112). Consequently, the immigration judge’s discussion
of the fate of those Afro-Mauritanian expellees is not
necessarily relevant to Diallo’s case. Even if Diallo’s claim
were purely based on his Afro-Mauritanian ethnicity, as of
the 1999 Country Report on which the immigration judge
relied, only half of the 70,000 Afro-Mauritanians who had
been expelled had been repatriated and the Mauritanian
government still had not signed any repatriation agree-
ments. (R. at 202). Likewise, according to the other State
Department document on which the immigration judge
relied, the 1999 Asylum Report, progress on repatriation
was uneven and had stalled somewhat by late 1997. (R. at
182).
Whether Diallo has a well-founded fear of future persecu-
tion depends in large part on the credibility of his testi-
mony. If indeed the police came looking for a “member of
FLAM” when he was arrested and incarcerated, it seems
most logical to focus on whether a member of a political oppo-
sition group such as FLAM can safely return to Mauritania
today. We therefore remand for an assessment of Diallo’s
credibility and for an analysis of whether his fear is sub-
jectively genuine and objectively reasonable in light of the
credible evidence.
Finally, we address Diallo’s claims that he was denied his
Fifth Amendment right to due process rights in two differ-
ent ways in the course of his immigration proceedings. We
review claims of due process violations in removal proceed-
ings de novo. Kuschchak v. Ashcroft, 366 F.3d 597, 602 (7th
Cir. 2004). Diallo claims that his due process rights were
violated when he was declared a “no show” at his asylum
interview and the INS placed Diallo in removal proceedings
and referred his application to an immigration judge. The
government claims we have no jurisdiction to consider the
actions taken by the asylum office. Diallo counters by claim-
No. 03-1876 21
ing that the matter was discussed at the hearing and
became part of the record and therefore part of our review
of the final BIA determination. We need not resolve this
battle because we conclude that even if we had jurisdiction
to consider the action, under Agency regulations, Diallo was
required to demonstrate that his failure to appear—and a
failure to provide an interpreter can indeed constitute a
failure to appear—was the result of exceptional circum-
stances. See 8 C.F.R. § 208.10; 8 C.F.R. § 208.9(g). And
although Diallo appeared with his lawyer at the interview,
he failed to demonstrate affirmatively the existence of any
exceptional circumstances. (R. at 161).
Finally, Diallo claims that the immigration judge’s ag-
gressive questioning and frequent interruptions denied him
due process of law. After reviewing the hearing transcript,
we can understand how Diallo found the judge to be
impatient and, at times, inappropriate. Nevertheless, his
behavior did not amount to a violation of due process. An
immigration judge is permitted to “interrogate, examine,
and cross-examine the alien and any witnesses.” 8 U.S.C.
§ 1229a(b)(1). And although one hopes that an immigration
judge will perform these tasks with patience and decorum
befitting a person privileged with this position, such failures
to do so do not in and of themselves create due process vio-
lations.
In sum, we reverse the finding of the Agency that Diallo
was firmly resettled in Senegal and we remand to the
Department of Homeland Security for a credibility determi-
nation and for subsequent proceedings to determine whether
Diallo suffered past persecution or had a well-founded fear
of future persecution entitling him to asylum in this coun-
try. In view of our criticism of the immigration judge in this
matter, we urge the Department of Homeland Security to
refer this case to a different immigration judge on remand.
REVERSED IN PART, REVERSED AND REMANDED IN PART.
22 No. 03-1876
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-26-04