Soumahoro, Ismaila v. Gonzales, Alberto R. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2157
ISMAILA SOUMAHORO,
Petitioner,
v.
ALBERTO R. GONZALES,
Respondent.
____________
On Petition for Review of an Order of
the Board of Immigration Appeals.
No. A 79 287 087
____________
ARGUED JUNE 1, 2005—DECIDED JULY 19, 2005
____________
Before MANION, WOOD, and SYKES, Circuit Judges.
PER CURIAM. Ismaila Soumahoro fled Cote d’Ivoire (or
Ivory Coast) and sought asylum in the United States,
claiming that he was and will be persecuted as a leading
member of a political party opposed to the governing
regime. An immigration judge (IJ) denied his applications
for asylum, withholding of removal, and relief under the
Convention Against Torture because he found that
Soumahoro did not corroborate his testimony and did not
establish that he suffered past persecution. The Board of
2 No. 04-2157
Immigration Appeals (BIA) summarily affirmed, and
Soumahoro petitioned this court for review. We now grant
his petition.
I.
Soumahoro is a Muslim and member of the Jula ethnic
group. He testified that he joined the opposition political
party Rassemblement Des Républicains (RDR) in 1996 and
a year later became the party’s secretary general for a size-
able part of Cote d’Ivoire’s largest city. Soumahoro focused
his efforts with the RDR on recruiting younger voters to the
party. His political activities caused no problems for him
until 1999, when the government was overthrown in a mili-
tary coup led by General Robert Guei. Soumahoro testified
that in April 2000 police officers came to the school where
he had taught for nineteen years and arrested him. He and
approximately twenty other RDR supporters were detained
for two weeks, beaten daily, and given only minimal food
and water. Guards also rubbed salt in his wounds to
increase his suffering. During his detention, the officers
repeatedly urged him to denounce the RDR and sign a
statement declaring RDR leader Alassane Ouattara an en-
emy of the country, but Soumahoro refused to do so.
After Soumahoro was released, he spent three days under
a doctor’s care before returning to his job. But when he
returned to the school, the director fired him because of his
extended absence. Soumahoro claims that his firing was
part of a larger campaign by Guei to remove Muslims and
Jula from public employment. After he was fired,
Soumahoro began working full-time at the local RDR head-
quarters. During the next five months he testified that police
occasionally came looking for him but that he was not
arrested or physically harmed during this time.
No. 04-2157 3
Tensions between the Guei junta and the RDR escalated
sharply in late October 2000 in the aftermath of what the
State Department country report describes as a “flawed
presidential election” that was “marred by significant vio-
lence and irregularities.” Before the election, police forcibly
quashed campaign rallies by the RDR and other opposition
parties, while permitting campaigning only by supporters
of General Guei. Guei’s allies on the country’s supreme
court then disqualified Ouattara and most other opposition
candidates. The RDR called for a boycott of the election and
voter turnout was extremely low. After exit polls showed
that Laurent Gbagbo—a candidate from the Front Populaire
Ivoirien party—was the likely winner, soldiers loyal to Guei
stormed the headquarters of the election commission and
halted the vote count. Soldiers also took control of the
national radio and television stations and declared Guei the
winner. This announcement triggered violent protests by
Gbagbo supporters, and Guei was eventually forced to
concede the election and flee for his life. The installation of
Gbagbo as president touched off a new round of protests by
RDR supporters, who demanded a new election in which
their candidate would be allowed to participate. Soldiers
loyal to Gbagbo violently suppressed the RDR demonstra-
tions, killing over 500 protesters and injuring hundreds
more. Soumahoro testified that he took part in the protests
against Gbagbo’s presidency and that one of his assistants
at the RDR was killed when police opened fire on a group
of demonstrators.
The violence following the October election led
Soumahoro to make plans to flee the country. He moved
from place to place for several weeks to evade the authori-
ties, and in December 2000 obtained a false passport which
he used to enter the United States. Soumahoro left his
mother, wife, and two children behind. Although he did not
explain why he left his family behind, he believes they fled
4 No. 04-2157
to either Burkino Faso or Mali. Other members of
Soumahoro’s family remain in Cote d’Ivoire, and his uncle
and brother-in-law are in prison because of their involve-
ment with the RDR.
After Soumahoro’s departure, the political crisis in
Cote d’Ivoire worsened. Civil war erupted after a failed
coup in September 2002, and hostilities flare up regularly
despite the presence of thousands of international peace-
keepers. The Country Report used at the hearing in
March 2003 was dated March 4, 2002, and thus does not in-
clude the September coup. Soumahoro’s attorney objected
to the use of such an outdated report and noted that a new
report was due to be issued within a month, but the IJ
overruled his objection.
Soumahoro attempted to obtain supporting documen-
tation from a friend in Cote d’Ivoire, but for a number of
reasons the documents did not arrive by the time of the
hearing. Soumahoro filed a motion for a continuance a week
before the hearing, asserting that the renewed hostilities in
Cote d’Ivoire prevented his friend from mailing the docu-
ments. The day after Soumahoro requested the continuance,
his friend was able to ship the documents, and he faxed
Soumahoro a copy of an airbill from the courier company
DHL that was dated February 26, 2003. But there were
multiple mistakes on the airbill that further delayed the
shipment. For instance, the airbill was addressed to
Soumahoro’s home in Greensboro, North Carolina, but
North Carolina was incorrectly abbreviated “NG” and the
address contained the wrong zip code. According to the
Postal Service website, the zip code on the airbill (22407) is
for Fredericksburg, Virginia, and is one digit off of the
correct zip code for Soumahoro’s apartment in Greensboro
(27407). At the hearing Soumahoro presented the airbill and
again requested a continuance. The IJ, however, spe-culated
No. 04-2157 5
that Soumahoro had arranged to have an empty box sent to
him in order to delay the proceedings and held the hearing
as scheduled. The package arrived two days after the
hearing, and counsel tells us that it contained Soumahoro’s
birth certificate, his national identification card, two letters
from RDR officials attesting to his involvement with the
party, and several local newspaper articles describing
current conditions in the country.
The IJ denied Soumahoro’s application for several rea-
sons, but the focus of his decision was on the lack of
corroborating evidence. In the alternative, the IJ also found
that Soumahoro did not suffer harm severe enough to con-
stitute past persecution. The IJ also repeatedly expressed
doubt about key elements of Soumahoro’s testimony, but he
never made a credibility finding. The BIA summarily
affirmed the IJ’s decision under its streamlining approach.
II.
When the BIA affirms an IJ’s ruling without opinion, we
review the IJ’s decision as if it were that of the BIA. Lin v.
Ashcroft, 385 F.3d 748, 751 (7th Cir. 2004). We must uphold
the IJ’s decision provided that it is supported by reasonable,
substantial, and probative evidence. Id. But although our
review is deferential, “we will not automatically yield to the
IJ’s conclusions when they are drawn from insufficient or
incomplete evidence.” Georgis v. Ashcroft, 328 F.3d 962, 968
(7th Cir. 2003).
Soumahoro first argues that the IJ’s decision to deny his
application for lack of corroboration was not supported by
substantial evidence because the IJ never made a credibility
finding and failed to address his contention that his sup-
porting documents were in transit with DHL. The IJ listed
several types of documents he said Soumahoro should have
6 No. 04-2157
provided, including: a plane ticket showing his date and
place of entry into the United States; documents establishing
his ethnicity, religion, employment, and membership in the
RDR; medical reports of treatment for his injuries; and
documentation of his family’s current whereabouts. When
an IJ denies an asylum application for lack of corroborating
evidence, he must (1) make an explicit credibility finding;
(2) explain why additional corroboration is reasonable; and
(3) explain why the alien’s explanation for not producing
the requested corroboration is inadequate. Gontcharova v.
Ashcroft, 384 F.3d 873, 877 (7th Cir. 2004).
The IJ here failed to make a credibility finding, as required
by Gontcharova, and we have repeatedly observed that the
lack of such a finding makes our review difficult. See Iao v.
Gonzales, 400 F.3d 530, 534 (7th Cir. 2005); Diallo v. Ashcroft,
381 F.3d 687, 698-99 (7th Cir. 2004); Niam v. Ashcroft, 354
F.3d 652, 658 (7th Cir. 2004) (lack of credibility finding left
“yawning void” in IJ’s decision). The IJ commented in his
decision that he disbelieved Soumahoro’s testimony, but we
have emphasized that passing expressions of disbelief do
not adequately substitute for an adverse credibility finding.
See Iao, 400 F.3d at 534; Diallo, 381 F.3d at 698. An adverse
credibility finding must be supported by “specific, cogent
reasons” that bear “a legitimate nexus” to the finding. Capric
v. Ashcroft, 355 F.3d 1075, 1086 (7th Cir. 2004). The IJ here
simply expressed doubt about Soumahoro’s claims without
ever giving specific reasons why he disbelieved his testi-
mony.
Much of the IJ’s skepticism seems to have been motivated
by Soumahoro’s failure to corroborate his claim with
documentary evidence. An IJ must explain why additional
corroboration is reasonable and why the applicant’s expla-
nation for not providing it is inadequate. Gontcharova, 384
F.3d at 877. Soumahoro does not dispute that at least some
No. 04-2157 7
of the IJ’s demands for documentation are reasonable. But
he argues that the IJ did not adequately consider his ex-
planation for not providing supporting documentation. The
IJ faulted Soumahoro for not requesting documents from
Cote d’Ivoire immediately upon arriving in the United
States. But Soumahoro testified that he was unable to retain
an attorney until March 2002 and that it was another six
months before his attorney told him the specific documents
he would need. Within a week of receiving the list of
documents his attorney wanted, Soumahoro phoned a
friend in Cote d’Ivoire to request assistance in obtaining
them. But unfortunately for Soumahoro, his call to his friend
in September 2002 came only days before the outbreak of
civil war in his home country. Furthermore, his friend’s
efforts were delayed because Soumahoro’s wife had many
of the original documents and neither Soumahoro nor his
friend knew her whereabouts.
We agree that the IJ did not adequately consider
Soumahoro’s explanation for the missing documents. The IJ
completely disregarded Soumahoro’s explanation that the
corroborating documents were contained in the DHL
package. Soumahoro explained that his friend’s efforts to
locate the documents were hampered by the outbreak of
war, and he presented an airbill showing that a package
with an obviously incorrect address had been mailed to him
from Cote d’Ivoire. The IJ never said why he found this
explanation inadequate, and Soumahoro’s explanation is far
more plausible than the IJ’s alternative unfounded conclu-
sion that Soumahoro had arranged to have an empty box
sent to himself. The IJ also faulted Soumahoro for not asking
his friend to collect documents earlier. Although Soumahoro
perhaps could have acted more quickly, it was unreasonable
for the IJ to assume that he was sufficiently familiar with
procedures in the immigration court to realize the specific
documents he needed before even obtaining counsel. The
8 No. 04-2157
documents that he believed were contained in the pack-
age—including Soumahoro’s birth certificate and national
identity card and two letters from RDR officials attesting to
his involvement in the party—are precisely the types of
documents the IJ faulted him for not providing at the
hearing. Under these circumstances, it was unreasonable for
the IJ to reject Soumahoro’s explanation for why the docu-
ments had not yet arrived by the time of the hearing.
Soumahoro next contests the IJ’s finding that he did not
suffer harm severe enough to qualify as past persecution.
Persecution is “punishment or the infliction of harm for
political, religious, or other reasons that this country does
not recognize as legitimate.” Liu v. Ashcroft, 380 F.3d 307,
312 (7th Cir. 2004) (internal quotation and citation omitted).
It is not necessary that an asylum applicant’s life or freedom
were threatened, but the harm he suffered must rise above
the level of “mere harassment” and must result from more
than unpleasant or even dangerous conditions in his home
country. Id. (internal citations and quotation omitted). The IJ
found that Soumahoro’s two-week detention “in and of
itself” did not rise to the level of past persecution. The
IJ also concluded that Soumahoro was not persecuted be-
cause “the obvious reason is that the respondent could not
find employment in Ivory Coast and sought to leave to
better his life.”
We agree with Soumahoro that the IJ erred by finding that
the events he described did not rise to the level of past
persecution. We have recognized that actions such as “de-
tention, arrest, interrogation, prosecution, imprisonment,
illegal searches, confiscation of property, surveillance, beat-
ings, or torture” may be sufficient to establish persecution.
Ciorba v. Ashcroft, 323 F.3d 539, 545 (7th Cir. 2003) (internal
citation and quotation omitted). Soumahoro testified that he
endured several of these actions. He testified that he was
No. 04-2157 9
arrested and imprisoned for two weeks, during which time
he was beaten regularly, denied adequate food and water,
and had salt literally rubbed in his wounds. He also testified
that he was fired from the job he had held for nineteen years
as part of a campaign by government officials to eliminate
Muslims, Jula, and RDR supporters from public employ-
ment. Although he was ostensibly fired for missing work,
his testimony makes clear that he believes his termination
was related to his arrest and political activity, and we
reiterate that the IJ did not find him incredible. In the seven
months between when he was released from prison and
when he fled the country, Soumahoro explained that he
participated in political demonstrations that were violently
suppressed and added that one of his subordinates in the
RDR was killed during a demonstration. The IJ never
explained why he believed these events were not suffi-
ciently serious to constitute past persecution. Instead, the IJ
disregarded this testimony and found that the “obvious”
reason Soumahoro fled Cote d’Ivoire was because he could
not find work—a conclusion totally unsupported by the
record.
We addressed a factually similar claim in Asani v. INS, 154
F.3d 719, 722-23 (7th Cir. 1998), in which we held that an
applicant suffered persecution when he was jailed for two
weeks in a tiny cell, denied adequate food and water, and
lost two teeth as a result of police beatings. In contrast, in
Dandan v. Ashcroft, 339 F.3d 567, 574 (7th Cir. 2003), we held
that we were not compelled to find that an applicant was
persecuted when he was detained for three days with
minimal food and beaten until his face was swollen.
Soumahoro’s case is closer to Asani than to Dandan.
Soumahoro was detained for two weeks—the same amount
of time as the applicant in Asani—and testified that he was
beaten daily and sustained injuries serious enough to
10 No. 04-2157
require three days of medical care. Furthermore, after his
release, Soumahoro continued to play a leadership role in
the RDR and testified that he participated in political rallies
that were forcibly suppressed by government forces. On
these facts, we cannot say that the IJ’s finding that
Soumahoro did not suffer serious enough harm to establish
past persecution is supported by substantial evidence.
III.
Soumahoro’s petition for review is GRANTED and the
order of removal is VACATED. Because Soumahoro is en-
titled to a new hearing on his asylum claim, we need not
address his alternative arguments concerning his applica-
tions for withholding of removal and relief under the
Convention Against Torture.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-19-05