Ayi, Vissinto K. v. Gonzales, Alberto ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3320
VISSINTO K. AYI,
Petitioner,
v.
ALBERTO R. GONZALES,
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A95-220-244
____________
ARGUED MARCH 29, 2006—DECIDED AUGUST 21, 2006
____________
Before BAUER, KANNE, and SYKES Circuit Judges.
BAUER, Circuit Judge. Vissinto Kouassi Ayi applied
for asylum, contending that he had been persecuted in Togo
for his extensive political activities on behalf of the opposi-
tion movement. Ayi is a native of Togo and was an active
member of both the Togolese League for Human Rights and
the Union des Forces du Changement. Both of these
organizations are established political and human rights
groups opposed to the ruling government. After Ayi had
endured two incidents of extended captivity and torture, he
learned that a summons had been issued for his arrest.
Because he feared for his life, he arranged for his family to
go into hiding and he fled the country with the help of his
cousin. He entered the United States legally on December
2 No. 05-3320
10, 2000. Ayi applied for asylum on November 26, 2001.
Because the Immigration Judge’s adverse credibility finding
is speculative and not based on substantial evidence, we
grant Ayi’s petition for review.
I. Background
Ayi was born in Togo and is a member of the Mina ethnic
tribe. He was an engineer, a well-respected businessman,
and a member of academia. From early 1991 through the
fall of 1993, Ayi worked on various political activities in
opposition to the dictatorial regime of President Gnassingbe
Eyadema. Ayi wrote articles that were published in opposi-
tion newspapers and he joined the Togolese League for
Human Rights (“LTDH”), a well-known human rights
group. Ayi also traveled throughout Togo to educate others
about democracy and human rights.
As a result of his political activities, Ayi was arrested by
Togolese security forces on September 11, 1993. He was
detained for 15 days and during this detention, he was
interrogated, beaten, deprived of food, subjected to electrical
shocks, and was forced to kneel on broken palm nuts
(which, Ayi explained, is like kneeling on broken glass) in
the hot sun for hours, which caused an infection in his
knees and resulted in permanent scarring. Although Ayi
was eventually released, he was warned by his captors
not to report his detention to the press. He was hospitalized
for five days after the detention due to the injuries he
sustained while in captivity.
After such a traumatic experience, Ayi was not openly
political again until 1998. In 1998, he joined the Union
des Forces du Changement (“UFC”), which was also an
opposition organization that raised awareness and educated
people about democracy in Togo. Ayi became active and
went door-to-door campaigning on behalf of the UFC’s
presidential candidate. On March 27, 1999, Ayi was again
No. 05-3320 3
arrested and detained. Togolese security forces shoved
Ayi in a car at gunpoint and took him to an undisclosed
location for two days. During his detention, Ayi was
interrogated about his UFC activities, deprived of food
and water, and forced into a cesspool of mud and dead
animals. When Ayi tried to escape, guards stomped on his
hands, causing permanent scarring. He was also forced to
bathe in a red liquid that burned his skin and eyes. The
guards threatened to kill him repeatedly before his re-
lease and warned that he would be harmed if he reported
any part of the incident to the press.
Ayi continued his political activities using different means
at the Center for Technological and Professional Training
(“CNPP”) by encouraging and recruiting co-workers to join
an independent union, the Confederation of Syndicole
Travailers du Togo, rather than the government controlled
union. He also wrote articles in opposition to Eyadema’s
regime. Specifically, Ayi authored two articles, both pub-
lished in 2000, one in Le Parole, and a second in Le Combat
du People. In 2000, the director of the CNPP and the
nephew of President Eyadema, Mr. Kadaring, confronted
Ayi about his work for opposition political parties. Ayi had
appeared on television denouncing someone and the next
day he drafted an article that he submitted to be printed.
Somehow, Kadaring received the handwritten article and
confronted Ayi about it, asking whose handwriting it was on
the article. Kadaring told Ayi that the handwritten article
made it clear to him that Ayi had written the articles about
Eyadema and his family. Ayi of course denied the charges.
On May 24, 2000, Lt. Colonel Takougnadi, the general
manager of the police and Kadaring’s cousin, called Ayi and
said that it appeared Ayi had not “learned” anything from
his previous detentions. Lt. Colonel Takougnadi told Ayi to
“stop making problems.”
In November 2000, vandals broke into Ayi’s office at
CNPP on two separate occasions. On November 8, 2000, his
4 No. 05-3320
car was vandalized and set on fire. After the second break-
in, Ayi’s cousin, Asheni, told him that a summons had been
issued for Ayi’s arrest. Ayi sought to leave the country
because he feared for his life. With the assistance of Asheni,
who was the commander of Togo’s airport security, Ayi was
able to avoid security problems at the airport and fly to the
United States on December 9, 2000. Ayi’s wife continued to
receive serious threats. Given the nature of these threats,
Ayi arranged for his wife to go into hiding with their
children near the Benin border. Two days after they had
gone, the Ayis’ home was searched and many of their
personal possessions were confiscated.
Ayi believes that if he were to return to Togo, he would be
automatically arrested and imprisoned for his opposition to
Eyadema and his family. (Since Ayi left, Eyadema’s son,
Faure Gnassingbé, has taken over as President of Togo).
Ayi’s family tells him that he is still in danger and that
government forces have been looking for him. Ayi’s brother,
Virgil Kouassi Ayi, went to Benin to visit Vissinto Ayi’s wife
and children. Virgil was arrested at the border control
because the officers though that he was Vissinto Kouassi
Ayi. Virgil was held for 15 hours before the border control
finally believed that he was Vissinto’s brother.
Ayi filed for asylum on November 26, 2001, which is
within the one-year statutory deadline required by 8 C.F.R.
§ 1158(a)(2)(B). Following an agency interview, Immigration
and Naturalization Service (“INS”) rejected Ayi’s asylum
application. The INS then referred Ayi’s application to an
immigration court, together with a notice to appear that
charged Ayi with unlawfully remaining in the United States
after his visa had expired. Ayi opposed his removal under
the previously filed asylum application and sought with-
holding of removal, relief under the Convention Against
Torture, and alternatively, voluntary departure. He ap-
peared before the IJ for a merits hearing on his asylum
application on March 23, 2004. The merits hearing was
No. 05-3320 5
continued until September 27, 2004 and Ayi again at-
tempted to present testimony and documents in support of
his case. On November 1, 2004, the IJ issued a written
ruling denying all requested relief. The IJ concluded that
Ayi was not credible because there were inconsistencies
about Ayi’s political involvement that the IJ believed
undermined his claim. Ayi appealed the IJ’s decision and
the Board of Immigration Appeals adopted and affirmed the
IJ’s ruling on July 13, 2005. This appeal timely followed.
II. Analysis
We focus on the IJ’s credibility finding since the remain-
ing issues on appeal depend on this adverse ruling. When
the BIA does not issue an opinion, but rather, as it does
here, summarily affirms and adopts the IJ’s opinion, we
review the IJ’s decision as the final agency determination.
Georgis v. Ashcroft, 328 F.3d 962, 966-67 (7th Cir. 2003).
Since Ayi filed his asylum application prior to passage of
the REAL ID Act, Pub. L. No. 109-13, 119 Stat. 231, that
statute does not affect the credibility analysis in this case.
Diallo v. Gonzales, 439 F.3d 764, 766 n.1 (7th Cir. 2006).
We will affirm an adverse credibility determination only
where it is “supported by specific cogent reasons that bear
a legitimate nexus to the finding.” Uwase v. Ashcroft, 349
F.3d 1039, 1041 (7th Cir. 2003). While we give great
deference to the IJ’s credibility determination, “adverse
credibility determinations should not be grounded in trivial
details or easily explained discrepancies” because such
bases lack a legitimate nexus to the finding. Korniejew v.
Ashcroft, 371 F.3d 377, 387 (7th Cir. 2004) (citation omit-
ted).
The IJ concluded that Ayi’s testimony was unconvinc-
ing as to his 1993 detention. Ayi explained that he was
targeted in 1993 for writing an article critical of President
Eyadema and for his political activities. The IJ was critical
6 No. 05-3320
of Ayi’s testimony and wanted Ayi to provide a clear and
convincing explanation for how his persecutors knew he
authored articles critical of President Eyadema’s govern-
ment. Yet, our precedent understands that Ayi is not
capable, nor is expected, to testify to the knowledge of other
persons, particularly when called to testify about
the knowledge of his oppressors. Gontcharova v. Ashcroft,
384 F.3d 873, 877-78 (7th Cir. 2004) (denial of asylum
overturned where decision was partly based on absence
of documents not reasonably available to petitioner and
described as “corroboration from the persecutor.”) For an IJ
to deny an asylum claim for lack of corroboration and
demand such evidence from the applicant, the IJ “must first
make an express credibility finding.” Diallo, 439 F.3d at
765-66 (citation omitted). The IJ must also “explain why it
is reasonable to expect corroboration and explain why the
applicant’s reason for not supplying corroboration is inade-
quate.” Id.; see also Gontcharova, 384 F.3d at 877.
The IJ improperly expected Ayi to explain how his
persecutors knew he was the one who had written the
article critical of Eyadema’s government. His persecutors
may or may not have known that Ayi was the ghostwriter
of the opposition articles, but their targeting of him may
have been the result of his education and outreach efforts
on behalf of the LTDH. Ayi testified that he was persecuted
in 1993 for political activities that included travel-
ing throughout Togo to educate others about democracy and
human rights, which singled him out as an opposition
political activist. Despite the fact that Ayi offered thorough
and consistent testimony that in June 1993 he had written
an article opposing the government, and that he was unable
to provide a copy of the article because the police seized all
of the opposition papers and the publisher is no longer in
business, the IJ questioned the veracity of Ayi’s testimony.
Ayi, however, provided corroborating evidence in the form
of a letter from Lucien Messan, the director of the publica-
No. 05-3320 7
tion itself. For reasons unclear to us, the IJ discredited the
letter from Messan, where he stated that Ayi wrote opposi-
tion articles for his publication. Messan’s letter also gave
the pen name that Ayi used, “Rodrigue,” which corresponds
with the author of the articles that Ayi submitted in his
application. Without basis in law, the IJ determined that
Mr. Messan’s letter should have provided the exact dates
and titles of Ayi’s articles in order to establish that Ayi had
written them. Ayi also offered the affidavit of Marcel
Adjalla, the former Executive Secretary of the LTDH, which
stated that Ayi wrote for various independent newspapers
and that he was an active member of the LTDH. Given the
seizure of the articles and the subsequent closing of the
publication, Ayi’s testimony and explanations are not
incredible and, actually, appear to be the types of “easily
explained discrepancies” that should not be the basis for an
IJ’s adverse credibility finding. Korniejew, 371 F.3d at 387.
The IJ next doubted Ayi’s belief that he would be perse-
cuted if he was forced to return to Togo. Noting that Ayi
took a business trip to the United States in 1998, the IJ
questioned why Ayi did not apply for asylum then if
he suffered such terrible persecution in 1993. Ayi’s
uncontroverted testimony is that his 1993 detention and the
torture he endured during it scared him to the point that he
stopped his political activities for five years. When Ayi was
asked why he did not apply for asylum when he was in the
United States in 1998, Ayi explained that at the time of his
business trip “he did not feel openly harassed.” The IJ
disregarded, without explanation, the fact that Ayi had
ceased his political activities after his detention in 1993.
Discrediting Ayi’s testimony for speculative reasons, the IJ
concluded that if Ayi’s torture was as terrible as he claimed,
he would have applied for asylum in 1998 regardless of how
much time had passed since Ayi was openly political and
targeted.
What the IJ fails to understand is that Ayi’s hiatus from
political activity—and thus from persecution—does not
8 No. 05-3320
diminish his credibility. Avoiding persecution for even an
extended period of time is not relevant to a credibility
determination. Hor v. Gonzales, 421 F.3d 497, 499 (7th Cir.
2005) (vacating credibility determination based on IJ’s own
suspicion regarding length of time between dangerous
encounters with persecutors). See also Dong v. Gonzales,
421 F.3d 573, 578 (7th Cir. 2005) (“It is not relevant to
[applicant’s] credibility that she avoided persecution during
the four years she remained in China.”).
Moreover, the IJ failed to mention the fact that Ayi’s
second detention came after the business trip to the United
States. Ayi became politically active again in 1998 and
was detained and tortured on March 27, 1999. The sec-
ond detention subjected Ayi to horrific torture. Signifi-
cantly, Ayi was submerged in a cesspool of mud and dead
animals and when he tried to escape, the guards stomped
on his hands, which caused permanent scarring. He ulti-
mately fled Togo when he was notified that a summons had
been issued for his arrest in November of 2000. The
IJ needed to view Ayi’s entire history of political activity as
a seamless story, not as finite periods of time that were
mutually exclusive of each other. As the Board of Immigra-
tion Appeals has explained, “[t]estimony is not a discrete,
self-contained unit of evidence examined and weighed
without context; it is a part of the body of evidence which is
intertwined and considered in its totality.” Lin v. Gonzales,
446 F.3d 395, 402 (2d Cir. 2006) (quoting In re S-M-J-, 21
I & N Dec. 722, 729 (BIA 1997)).
The IJ also discredited Ayi’s testimony about his employ-
ment at a state-run educational institution. He concluded
that Ayi had not produced evidence proving that univer-
sity officials were responsible for breaking into his office on
several occasions and eventually vandalizing and setting
fire to his car. The IJ also held that Ayi had not produced
evidence proving that university officials were aware of his
political activities, including whether the officials knew he
No. 05-3320 9
had written articles in opposition newspapers. He also
wondered how Ayi was able to keep his job if his employers
were really targeting him for his political activities.
The IJ’s findings regarding Ayi’s job amount to conjecture
and speculation rather than conclusions that are grounded
in the record. The IJ’s conclusions about Ayi’s employer
illustrate this point. Ayi offered consistent and detailed
testimony regarding his political activities at work, and the
threats he received from the director of the CNPP as well as
others in the government.
Specifically, Ayi testified that he was confronted and
threatened about his political activities by Mr. Kadaring,
the CNPP director and nephew of President Eyadema.
Kadaring asked Ayi if he had written the opposition articles
and Ayi denied authoring them because he feared for his
safety. In addition, Lt. Colonel Takougnadi, the general
manager of the police and Mr. Kadaring’s cousin, called Ayi
and told him that it seemed that Ayi had not “learned”
anything from his previous detentions. Despite this testi-
mony, the IJ questioned how Ayi’s employers knew that he
was involved in the opposition, stating that, “[t]here is no
evidence to suggest that the director suspected that the
Respondent wrote the articles against Eyadema because the
Respondent denied writing them to the director.” This
statement is breathtaking in its contradiction with the
record. Given the threats that Ayi received from the director
and the general manager of the police about authoring
opposition articles and political activity, it is considerably
clear that Ayi was suspected as a political activist and
writer. Additionally, the IJ claimed that if Ayi’s superiors
truly wanted to punish him, surely he would have been
fired. Yet, Ayi explained that the CNPP could not run the
school without him because he had specialized training and
education. The IJ dismissed this explanation, stating that
Ayi’s testimony is undermined by the fact that after Ayi fled
Togo, he was replaced by someone that the CNPP had sent
10 No. 05-3320
to be trained in Germany to gain the same set of skills as
Ayi. While Ayi was replaced, we fail to see how the IJ
disregarded the fact that in order to replace Ayi, the CNPP
needed to send someone to Germany for specialized train-
ing. This fact in the record demonstrates that Ayi’s skill was
hard to come by. Essentially, it seems that the IJ’s credibil-
ity assessments are the kind we cannot uphold because they
are “unmoored from the record, [and are] based on nothing
but the IJ’s personal speculation or conjecture.” Tabaku v.
Gonzales, 425 F.3d 417, 421 (7th Cir. 2005).
In his findings, the IJ also discredited Ayi’s testimony
as to how he fled Togo. The IJ wondered how Ayi was able
to leave Togo unimpeded if there was a summons for his
arrest. The IJ placed significant weight on a letter Ayi had
received from his cousin, Asheni, warning him to leave
immediately but asking Ayi not to contact him. During his
testimony Ayi explained that his cousin was able to help
him through security at the airport. Ayi stated, “An[ ]
Airport in Togo cannot be compared to the airport in the
United States. My cousin is responsible for the security
in the airport, everyone knows him.” At oral argument, the
government conceded that Asheni’s letter could have meant
any number of things, including that Asheni would help Ayi
but that Ayi should not contact him.
The IJ’s conclusions regarding Ayi’s departure are mere
speculation and conjecture, which does not support an
adverse credibility finding given the record in this case.
Chen v. Gonzales, 420 F.3d 707, 710 (7th Cir. 2005). We
have consistently explained to the Immigration Court that
while their credibility determinations are due deference,
they must be “supported by reasonable, substantial, and
probative evidence on the record considered on a whole.”
INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). Consider-
ing Ayi’s cousin was the head of security at the airport,
Ayi’s explanation for his departure is reasonable and is
No. 05-3320 11
not contradicted by probative evidence in the record
considered as a whole.
Finally, the IJ decided that a “paper disturbance,” as
described by the Forensic Document Laboratory Report, on
Ayi’s UFC membership card constituted a forged document.
The IJ concluded that the “paper disturbance” on the card,
which showed a difference between the type style in the
name “Kouassi,” and the type style of the rest of the card,
meant that the membership card was a counterfeit. The IJ
therefore decided that Ayi’s testimony was not “credible in
the face of a forged document because the UFC membership
card relates to a material element of his asylum claim.”
Yet, Ayi has explained that the “paper disturbance”
(which, notably, the Forensic Document Laboratory Re-
port labeled as a “paper disturbance” not a forgery) on the
card was the result of his middle name, Kouassi, added to
the membership card after it was initially issued to Ayi.
Similar to the surname “Smith,” or, even “Bauer,” in the
United States, Ayi explained that his surname is very
common in Togo, which is why he wanted his middle
name added to the membership card. Further, Ayi sub-
mitted a letter from the Vice President of the UFC, Emman-
uel Bob-Akitani, that certified Ayi as a member.
In Uwase v. Ashcroft, we held that a similar conclusion
about a document was equally unfounded. 349 F.3d at 1042.
Uwase did not explain the presence of a rubber stamp near
the signature line of a letter that told the applicant she
would be killed, and thus the IJ had found that her entire
story of persecution was incredible. In vacating the IJ’s
order of removal, we stated that “[t]he IJ’s speculation
regarding the significance of the stamp, unsupported in the
records, does not form a valid, cogent reason for a negative
credibility finding.” Id.Similarly here, the IJ’s determination that the UFC card
was a forgery based on what the Forensic Document
12 No. 05-3320
Laboratory Report deemed only to be a “paper disturbance”
is a speculative leap. Moreover, the difference in typeface on
the card indicates a lack of technology available to the UFC:
“The notion that documentation is as regular, multicopied,
and ubiquitous in disordered nations as in the United
States, a notion that crops up frequently, is unrealistic
concerning conditions actually prevailing in the Third
World.” Hor v. Gonzales, 421 F.3d 497, 501 (7th Cir. 2005)
(citation omitted). The IJ also disregarded the wealth of
corroborating evidence in the record that supports Ayi’s
political activities and membership in the opposition
movement. In addition to his own consistent and thorough
testimony, Ayi provided the IJ with his LTDH Membership
card and two letters corroborating his political activities on
behalf of the UFC. Ayi also provided the IJ with copies of
his pen-named articles, the summons for his arrest, and the
letter from his cousin indicating that he should flee.
The corroborating evidence that Ayi offered was either
dismissed by the IJ as raising more questions than answers
or considered as not enough. But the IJ did not explain, as
Diallo and Gontcharova require, why it was reasonable to
expect the corroboration he wanted, nor did he explain why
the applicant’s reason for not supplying the desired corrobo-
ration was inadequate. Diallo, 439 F.3d at 765-66;
Gontcharova, 384 F.3d at 877. We have held that the “IJ’s
skepticism—utterly unsupported by any facts in the
record—with respect to [petitioner’s testimony] does not
form a valid basis for a negative credibility determination
in the face of other corroborating evidence . . . presented.”
Lin v. Ashcroft, 385 F.3d 748, 755-56 (7th Cir. 2004). The
IJ’s speculation, which was not grounded in the record, is
inappropriate. Since the IJ’s credibility determination was
not supported by specific cogent reasons that bear a legiti-
mate nexus to the finding, it cannot be upheld.
Troubling to us is the surprising lack of regard for the
rich record in this case coupled with the fact that at least
No. 05-3320 13
parts of the IJ’s opinion appear to be a “cut and paste” job
from previous opinions.1 While Ayi offered an affidavit from
his treating physician (who noted the scarring and damage
on Ayi’s hands and knees), the IJ’s opinion does not mention
this corroborating evidence nor does he explain if or why it
was excluded. Our concern is not new, Pasha v. Gonzales,
433 F.3d 530 (7th Cir. 2005); Benslimane v. Gonzales, 430
F.3d 828, 829-30 (7th Cir. 2005), but unfortunately, it has
not abated.
The remaining arguments in Ayi’s appeal need not be
addressed at this time since we find that the IJ’s credibility
determination was not based on substantial evidence. We
therefore remand his petition to the Board of Immigra-
tion Appeals for proceedings consistent with this opinion.
III. Conclusion
For the foregoing reasons, Ayi’s petition for review is
GRANTED and this case is REMANDED to the Board for
proceedings consistent with this opinion.
1
Specifically, the IJ refers to Ayi as a “her” twice in the opinion:
“Therefore the Court must rely on the corroborating evidence to
determine whether the Respondent has met her burden of
establishing eligibility for asylum. The corroborating evidence
in this case, rather than supporting her claim, raises addi-
tional questions.” IJ opinion at 10 (emphasis added).
14 No. 05-3320
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-21-06