Blaise MAPOUYA, Petitioner, v. Alberto R. GONZALES, Respondent.
No. 06-3042.
United States Court of Appeals, Sixth Circuit.
Submitted: March 13, 2007. Decided and Filed: May 18, 2007.
Rehearing Denied Aug. 7, 2007.*
486 F.3d 396
Before MARTIN and CLAY, Circuit Judges; POLSTER, District Judge.**
* Judge Clay would grant the petition for reasons stated in his dissent. ** The Honorable Dan Aaron Polster, United States District Judge for the Northern District of Ohio, sitting by designation.
The Tennessee Court of Criminal Appeals concluded that Henley‘s evidence established prejudice resulting from his counsel‘s deficient performance: “We do not think it is assuming too much to conclude that a jury is going to be prejudiced against a defendant upon that person‘s own mother refusing to testify on his ... behalf.” Henley, 1996 WL 234075, at *11, 1996 Tenn.Crim.App. LEXIS 293, at *32. Because of the special relationship between a mother and child, not having one‘s own mother testify on their behalf, when one‘s life is at stake, would surely affect a juror‘s decision. As to the testimony of Henley‘s other family members, the Tennessee Supreme Court concluded that the testimony was weaker than the grandmother‘s testimony, because of their limited relationship with Henley, and cumulative of the grandmother‘s testimony, because Henley‘s other family members would have provided no new insight into Henley‘s life. However, having multiple family members plead for a defendant‘s life humanizes the defendant and makes it more likely that at least one juror will spare his life. See generally Hardwick v. Crosby, 320 F.3d 1127, 1163 (11th Cir.2003) (explaining that a defendant‘s attorney must conduct a proper investigation to “find witnesses to help humanize the defendant, given that a jury has found him guilty of a capital offense“); Mayes v. Gibson, 210 F.3d 1284, 1288 (10th Cir.2000) (noting that “mitigation evidence affords an opportunity to humanize and explain“). In this context, where the defendant is charged with a heinous crime, positive cumulative testimony benefits the defendant because the testimony of several family members all pleading for the defendant‘s life has a greater impact on the jury than the testimony of a single individual, regardless of how favorable that person‘s testimony is. Thus, had Henley‘s trial counsel not been deficient, “there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Accordingly, because the Tennessee Supreme Court unreasonably applied Strickland, I would grant Henley habeas relief on this claim.
ON BRIEF: John S. Richbourg, Memphis, Tennessee, for Petitioner. Surell Brady, United States Department of Justice, Washington, DC, for Respondent.
POLSTER, D.J., delivered the opinion of the court, in which MARTIN, J., joined. CLAY, J. (pp. 416-23), delivered a separate dissenting opinion.
OPINION
DAN AARON POLSTER, District Judge.
Blaise Mapouya petitions for judicial review of an order rendered by the Board of Immigration Appeals (“BIA“) denying his application for asylum, withholding of removal, and protection under the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment of Punishment (“The Convention” or “Convention“). For the reasons set forth below, we VACATE and REMAND this case to the BIA for further proceedings.
Blaise Mapouya1 is an ethnic Mbochi born in Brazzaville, Congo on January 4, 1970. He fled Congo on March 20, 1999, and eventually entered the United States illegally through New York City on August 3, 2002, using a borrowed passport. Mapouya made his way to Memphis, Tennessee, and in October 2002, he filed an application for asylum, withholding of removal, and relief under The Convention.2 On the application, Mapouya claimed asylum based on political opinion. After recounting that Mapouya was subjected to violence and torture in the days of the 1997-98 Congolese civil war, the application included Mapouya‘s assertion that he would not return to Congo as long as Denis Sassou-Nguesso is president, “because I do not want to put my life in danger.”
A recounting of recent events is necessary to better understand the details of Mapouya‘s testimony. In the second half of 1997, violence and civil war returned to the Republic of Congo3 (hereinafter “Congo“) when Sassou-Nguesso, the country‘s former military strongman, ousted the country‘s first democratically elected president, Pascal Lissouba.4 Sassou-Nguesso, who had ruled Congo previously from 1979-91 after a coup, once again seized power militarily in October 1997 after several months of vicious fighting between government and militia troops loyal to Lissouba on one side, and Sassou-Nguesso‘s forces on the other.5 Angolan troops also crossed the southern border and intervened at different places on Sassou-Nguesso‘s behalf, including in the capital city of Brazzaville, which is located in the southeast region of the country.
Strong ethnic overtones are present in Congolese politics, and the 1997-98 civil war was no different. Generally, the conflict can be characterized as pitting northerners, who supported Sassou-Nguesso and his Congolese Labour Party (“PCT“), against southerners, who supported former President Lissouba and former Prime Minister Bernard Kolelas. The Mbochi, which are one of the larger Bantu ethnic groups, are located primarily in the northern regions of Congo. Accordingly, the Mbochi are traditionally strong Sassou-Nguesso supporters, especially because Sassou-Nguesso is Mbochi as well. Conversely, supporters of Lissouba and his Pan-African Union for Social Development party (the translated acronym for which is “UPADS“) are primarily southern Congolese tribes, which are mainly Lari ethnic groups. Any divergence from these ethnic-political affiliations, while not unheard of, is rare. Mapouya appears to be one of these few exceptions.
With this background in mind, Mapouya‘s testimony is as follows.
The cell in which Mapouya was detained and held without counsel was extremely overcrowded and contained no furniture or bathroom facilities (aside from two tin cans which were to be used as toilets). Mapouya only left this cramped and crowded cell when soldiers came to take him into the basement for interrogation. The questioning centered around Mapouya‘s role with the UPADS and Yangari‘s relationship with Lissouba. When Mapouya told his captors he was just a regular UPADS member and knew nothing about his boss‘s activities, he was accused of lying. Consequently, the soldiers beat and tortured Mapouya with clubs and sticks. The beating lasted about an hour.
Mapouya was detained for three months, during which time he was similarly interrogated and beaten every morning. His captors finally released Mapouya because they had nothing with which to charge him, but they ordered Mapouya to remain within Brazzaville. To ensure that Mapouya followed their order to stay in the city, the soldiers also ordered him to report to the police station every week. Mapouya complied with the soldiers’ orders initially, but each time he reported back to the police station, the soldiers threatened to kill him if he was not truthful. The soldiers also beat Mapouya during these visits to the police station, and after three consecutive weeks of the same treatment, Mapouya refused to report any further.
Government troops appeared at Mapouya‘s home in February of 1998, less than one month after his last report to the police station. They accused Mapouya of supporting Lissouba, and forcefully took him back into custody. The soldiers beat Mapouya when arresting him, and then again after they reached the central prison in Brazzaville. Mapouya was dumped in a cell without windows or furniture, along with approximately fifteen other detainees. Once a week Mapouya‘s captors would take him from the cell to a special torture room, where he was interrogated about his former boss‘s relationship with Lissouba. Although his captors and tormentors were also Mbochi, Mapouya “had a problem because of [his] boss.”
Mapouya remained in custody without charge, subject to weekly torture sessions, for eleven months, at which point he was released. The soldiers, before releasing him, confiscated Mapouya‘s passport and the documents he held evidencing ownership of his house. Mapouya was also ordered to remain in Congo, but instead, Mapouya decided to flee Congo in search of his wife and child.
He headed for Gabon, which shares a border with Congo and to which Mapouya‘s wife and child had fled in 1997. To successfully cross the border in Gabon
The Gabonese authorities subsequently discovered Mapouya residing in the country illegally after the UNHCR document expired, and they informed Mapouya that he had to leave the country or be remanded into custody and returned to Congo. Fearing a return to Congo, Mapouya obtained another man‘s passport with the help of some friends and escaped to the United States.7
Mapouya also called Ibrahima Viong to testify during the immigration hearing. Viong, who is also Congolese but of Lari ethnicity, met Mapouya in Memphis a few days after Mapouya arrived in the United States. The two men did not know each other before meeting in Memphis. Viong‘s testimony consisted of his retelling the same story as recounted above, with the exception that Viong testified that Mapouya fled to Mali from Congo. Mapouya had previously testified that he fled to Gabon. Mapouya‘s counsel attempted to question Viong to clarify the discrepancy, but counsel for the government objected and the IJ sustained the objection. Mapouya‘s counsel did not rephrase his question or try to continue his line of questioning.
After considering the oral testimony and record evidence, the IJ entered an oral order denying Mapouya‘s applications and ordering his removal from the United States. In the order, the IJ found Mapouya not credible, based on three specific (alleged) inconsistencies discussed in detail below. The IJ then concluded that even if Mapouya was credible, he could not meet his burden of proof to sustain his asylum claims. The IJ cited two specific reasons for this conclusion: first, Mapouya provided no corroborating evidence to show what position Yangari held with the UPADS; and second, changed country conditions in Congo meant that Mapouya could not establish a well-founded fear of persecution.
The IJ also concluded that Mapouya was not eligible for withholding of removal. The IJ found that Mapouya had not shown that it was more likely than not that he would be persecuted on account of one of the five protected grounds if he returned to Congo. Finally, the IJ found that Mapouya did not present medical evidence to corroborate his claims that he was beaten for months, and therefore his claim under The Convention failed as well.
Mapouya appealed to the BIA, which affirmed the IJ‘s ruling and added further comments on the IJ‘s “changed country conditions” conclusion. Mapouya added a due process argument in his BIA appeal, citing the IJ‘s refusal to hear Viong‘s testimony first. He also submitted additional evidence in the form of Country Reports for Congo for 1997 and 2004. The BIA found no due process violation, reasoning that the IJ “conducted a full and fair hearing.” Consequently, the BIA dismissed Mapouya‘s appeal in an order dated December 16, 2005. This appeal followed.
This Court has jurisdiction to review the final decision of the BIA pursuant to
III. LAW AND ANALYSIS
A. Standard of Review
Where the BIA adopts the IJ‘s reasoning, the Court reviews the IJ‘s decision directly to determine whether the decision of the BIA should be upheld on appeal. Gilaj v. Gonzales, 408 F.3d 275, 283 (6th Cir.2005) (citing Denko v. INS, 351 F.3d 717, 723 (6th Cir.2003)). In this case, the BIA summarily adopted the IJ‘s decision while adding a comment on the IJ‘s treatment of the rebuttable presumption/changed country conditions question. The BIA also made a finding on Mapouya‘s due process claim. The Court therefore directly reviews the decision of the IJ while considering the additional comment made by the BIA. Id. Because the due process claim was not before the IJ, the Court directly reviews the BIA‘s decision on that claim. Id.
Furthermore, the Supreme Court recently held that when the IJ (and, subsequently, the BIA) does not make the proper inquiry and legal conclusions, supported by legal analysis and reasoning, the “proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.” Gonzales v. Thomas, 547 U.S. 183, 126 S.Ct. 1613, 1615, 164 L.Ed.2d 358 (2006) (per curiam) (citing INS v. Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam)). The Court noted: “A court of appeals ‘is generally not empowered to conduct a de novo inquiry into the matter being reviewed and to reach its own conclusions based on such an inquiry.‘” Id. (quoting Ventura, 537 U.S. at 16) (in turn quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985)). In one of the two Sixth Circuit opinions citing Thomas, the Court explained that “where, as here, a reviewing court cannot sustain an agency decision because the agency has failed to consider a legal issue central to resolution of the petitioner‘s claims, the appropriate remedy is remand to the agency for further consideration.” Xin Mao Wu v. Gonzales, 214 Fed.Appx. 592, 594-95 (6th Cir.2007).
The Supreme Court‘s Thomas language is especially vexing in light of the review standards previously (and, arguably, still) applicable. When the Court reviews the IJ‘s “application of legal principles to undisputed facts, rather than its underlying determination of those facts or its interpretation of its governing statutes, the review of both the [IJ‘s] asylum and withholding of deportation determinations is de novo.” Dorosh v. Ashcroft, 398 F.3d 379, 381 (6th Cir.2004) (quoting Diallo v. INS, 232 F.3d 279, 287 (2d Cir.2000) (internal quotations omitted)). See also, Bleta v. Gonzales, 174 Fed.Appx. 287, 291 (6th Cir.2006) (“The immigration judge‘s legal conclusions are reviewed de novo and its factual findings for substantial evidence.“) (citing Tapucu v. Gonzales, 399 F.3d 736 (6th Cir.2005)).
By contrast, the Court reviews the IJ‘s factual findings under the “substantial evidence” standard. See Filipi v. Gonzales, 127 Fed.Appx. 848, 850 (6th Cir.2005). An appellate court will reverse where the evidence in the record “not only supports a contrary conclusion, but indeed compels it.” Mikhailevitch v. INS, 146 F.3d 384, 388 (6th Cir.1998) (quotation marks omitted). In other words, for reviewing the IJ‘s factual conclusions, “the
Whether the IJ actually made a legal conclusion or a factual determination for the Court of Appeals to review appears to be the critical underlying issue in reconciling the Supreme Court‘s Thomas holding with the other review standards listed above.
Finally, claims of due process violations in deportation proceedings are reviewed de novo. Gilaj, 408 F.3d at 290 (citing Mikhailevitch, 146 F.3d at 391).
B. Petitioner‘s Asylum Application
Mapouya requested asylum relief pursuant to
The burden falls on the applicant to show that he or she meets the definition of “refugee.” See Mikhailevitch, 146 F.3d at 389. The testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration. See id. (citing
1. Credibility
Contrary to the IJ‘s assertion,10 an adverse credibility determination is treated as a finding or conclusion of fact, and is therefore subjected to review under the “substantial evidence” standard. See, e.g., Begu, 162 Fed.Appx. at 427 (citing Yu, 364 F.3d at 703). The finding, however, “must be supported by specific reasons.” Liti v. Gonzales, 411 F.3d 631, 637 (6th Cir.2005) (quoting Sylla v. INS, 388 F.3d 924, 926 (6th Cir.2004)). Moreover, those specific reasons must “bear a legitimate nexus to the finding.” Sylla, 388 F.3d at 926. Importantly, “an adverse credibility
The IJ‘s order cited three primary inconsistencies as the basis for his adverse credibility finding.11 Based on the analysis that follows, we conclude that the IJ focused on irrelevant (and arguably nonexistent) discrepancies and inconsistencies unsupported by the record as the basis for his adverse credibility finding.
a. “Fighter”
First, the IJ clearly placed tremendous importance on a potential inconsistency between Mapouya‘s 589 form12 and Mapouya‘s testimony involving why Sassou-Nguesso‘s forces detained Mapouya. The person translating and transcribing Mapouya‘s application wrote that Mapouya was detained the second time after the government forces accused him of being a “fighter” and supporting Pascal Lissouba. The transcriber also used the same word earlier in the application to describe Mapouya‘s arrests. During his cross-examination at the hearing, however, Mapouya testified vehemently that he was not a “fighter,” and that he was not accused of being a “fighter.” Mapouya testified on redirect that he could neither read nor write English, that he told the transcriber that he had been a Lissouba supporter and that Lissouba‘s party had worked against “the government” (i.e. Sassou-Nguesso‘s forces). Mapouya also testified that he never said anything to the transcriber about taking up arms against the government or being accused of doing so. Additionally, Viong testified that Mapouya was arrested for “supporting the Lari people.”13
Notwithstanding Mapouya‘s attempts to clarify what was most likely a translation misunderstanding, the IJ found this apparent inconsistency very significant. The IJ explained that “there is quite a difference between being a fighter and being a simple supporter.” The IJ then made the unsubstantiated assumption that Mapouya “us[ed] the word ‘fighter’ in this context to mean someone who had taken up arms either against Sassou Nguesso [sic] or in favor of Lissouba.” Essentially, the IJ relied on the general record evidence that civil war was raging in the Congo in 1997-98 to assume that Mapouya was really accused of being a militia member fighting against Sassou-Nguesso.
At least two critical problems arise from the IJ‘s treatment of this alleged inconsistency, however. First, the IJ subsequently offered no reasoned analysis of why the difference in terms “changes substantially” Mapouya‘s application.14 Second, and perhaps even more compelling, this alleged inconsistency is unsupported by the record evidence; the IJ had to impute meaning to a word that was most likely the result of an erroneous translation, and he drew that meaning by “speculation and conjecture” based on general evidence of warfare in Congo at the time. The IJ‘s conclusion that Mapouya used the word “fighter” in the militaristic meaning on his application was not based on any specific record evidence that Mapouya took up arms against Sassou-Neguesso, or that Mapouya was ever accused of doing so. Indeed, it directly contradicts what the IJ described as Mapouya‘s “vehement” denial that he fought militarily.15 The IJ‘s unsubstantiated assumptions are not sufficient to support an adverse credibility determination.
b. Whose house was burned
Second, the IJ relied on an alleged inconsistency between Mapouya‘s testimony and his 589 form involving a house that Sassou-Nguesso‘s forces burned down. Mapouya stated on his 589 form that he returned home from prison after the second arrest “to find that the house I owned was burned.” Then, during his direct hearing testimony, Mapouya testified that the house his parents had lived in was the house that was burned, and that the house in which Mapouya, his wife, and child formerly lived was unharmed. The IJ cited this alleged inconsistency as one of the three grounds for finding Mapouya incredible, despite Mapouya‘s subsequent clarification on cross-examination and redirect. The IJ‘s reliance on this alleged inconsistency is erroneous, however, for two reasons.
First and most importantly, the alleged inconsistency does not go to the heart of Mapouya‘s asylum application because it is irrelevant to Mapouya‘s well-founded fear of persecution and torture in the future if he returns to Congo. Therefore, the alleged inconsistency is an insufficient ground upon which to base an adverse credibility finding under Liti and Sylla, as outlined previously.
Second, a closer reading of the 589 form juxtaposed with Mapouya‘s testimony reveals that there was no inconsistency at all, merely the IJ‘s frustrated misunderstanding and likely another translation problem. Mapouya tried to explain during the cross-examination that he owned by inheritance the house in which his parents formerly lived, and that it was this house the military forces burned down, not the
Clearly, in light of the fact that Mapouya owned two houses, one of which was burned, there was great potential for translation problems on his 589 form; the English language provides myriad ways to state the possessive, all of which may not translate directly from another language but which have dramatically different connotations once translated, e.g. “ours, theirs, mine, his, hers,” etc. The same problem applies to the numerous ways in which the English language can connote ownership of a dwelling, e.g. “own, have, possess, live, legal ownership, equitable ownership,” etc. But even if translator error can plausibly lie at the heart of the supposed inconsistency, the plain language on the 589 form does not create an inconsistency with Mapouya‘s testimony at all; the uncontroverted evidence is that Mapouya did, in fact, legally own the house that was burned, even if the house formerly belonged to his now-deceased parents.
Moreover, specific testimony later in the hearing reveals the IJ‘s misunderstanding of the ownership situation. After Mapouya testified on direct, the government‘s attorney pounced on cross-examination and successfully framed any difference between Mapouya‘s testimony and his 589 form‘s contents as a major discrepancy. The IJ readily adopted the government‘s position, even taking over the cross-examination at one point. Unfortunately, the IJ only further contributed to the confusion by misquoting the statements on the 589 form during his questions to Mapouya. Specifically, the IJ exclaimed: “Sir, listen. Listen! I‘m quoting from your application. Your application doesn‘t say anything about your parents’ house being burned. It says I was released from prison to find that my house, the house that I owned, was burned. Is that true?” The wording of the IJ‘s obviously frustrated questioning is illustrative; the IJ conflated the descriptive phrases “my house” (which was not the language in the 589 form) and “the house that I owned” (the language actually used). The IJ treated the phrases as having exactly the same meaning, despite the obviously critical differences between the two. Mapouya used the second phrase on his 589 form, but not the first. Considering the full context of Mapouya‘s testimony, there is no inconsistency, material or otherwise. Accordingly, the IJ‘s adverse credibility determination, to the extent that conclusion was based on the alleged “burned house” inconsistency, is not supported by substantial evidence.
c. Viong‘s testimony
Third, the IJ cited a single discrepancy between Mapouya‘s testimony on direct and the testimony given by his witness, Ibrahima Viong, to support the adverse credibility determination. The IJ found it significant that Mapouya testified that he left the Congo for Gabon, whereas Viong testified that Mapouya had told Viong that he (Mapouya) went to Mali.16
Notwithstanding this inconsequential detail‘s irrelevance to the heart of Mapouya‘s asylum claim, the IJ relied on the discrepancy as the third basis for finding Mapouya incredible.
Curiously, we note that the IJ himself characterized his third basis as “not quite as serious” as the previous two bases discussed above. Moreover, the IJ even noted the very evidence that undermines his acceptance of Viong‘s testimony as the truthful version; the UNHCR refugee document. The IJ, however, did not just “note” the evidence that corroborated Mapouya‘s testimony; rather, he flatly ignored it.
The corroborating evidence Mapouya offered compels the conclusion that Viong simply confused the location of Mapouya‘s wife and child (Mali) with the country to which Mapouya fled (Gabon). The UNHCR document definitively supports Mapouya‘s story; he testified that he finally entered Gabon successfully in September of 1999, and the UNHCR document states that the attestation was issued in Gabon on September 21, 1999, expiring on September 20, 2000. Accordingly, the IJ erred in basing his adverse credibility determination, in part, on the discrepancy between Mapouya‘s testimony and Viong‘s testimony.17
In sum, because the alleged discrepancies advanced by the IJ “‘cannot be viewed as attempts by [Mapouya] to enhance his claims of persecution, they have no bearing on credibility.‘” Begu, 162 Fed.Appx. at 429 (citing Sylla, 388 F.3d at 926). The IJ provided no legal analysis or reasoning to explain why the alleged inconsistencies he cited are material to Mapouya‘s asylum claim. Furthermore, the alleged discrepancies cited by the IJ do not constitute substantial evidentiary support for a negative credibility finding.
Consequently, we must analyze the effects of the IJ‘s erroneous adverse credibility determination. As explained previously, the first step in an IJ‘s evaluation of an asylum application is the credibility determination. Begu, 162 Fed.Appx. at 427 (citing Yu, 364 F.3d at 703). We conclude that the IJ‘s erroneous adverse credibility determination permeated and infected the IJ‘s subsequent factual findings and legal conclusions as to whether Mapouya could meet his burden on the question of persecution for the asylum and withholding of removal claims, as well as his claim under The Convention.18
For example, the letters Mapouya presented strongly corroborated his fear of future persecution and torture, but the IJ failed to acknowledge the letters in his final order. One letter attests to the fact that the rival factions of Sassou-Nguesso and Lissouba continue to persecute their (political) opposition, especially on ethnic grounds. The other letter chillingly states that Sassou-Nguesso‘s forces are “still looking for you in the Congo” and that Mapouya‘s “name is on the wanted list at the Ministry of the Interior” as witnessed personally by the letter‘s author. During the hearing, the IJ focused only on trying to understand how Mapouya could refer to one of the letter writers as his “brother” when the men are not blood relatives. What should have been a simple concept to understand (using “my brother” as a salutation conveying great affection rather than blood relation) became the issue, based on the IJ‘s distrust of Mapouya, not the letters’ contents and implications. We decline, however, to make an affirmative credibility finding of our own, because immigration cases are, by nature, so fact-driven. Instead, the Court instructs that the case be remanded, and we urge that a different IJ to make his or her own credibility determination about Mapouya‘s relief requests. We note that even if we were to make a favorable credibility determination on the instant review, we would still be precluded, under Ventura and Thomas, from ultimately deciding whether to grant Mapouya‘s asylum claim; the IJ‘s ultimate conclusion on the asylum question reached only the first prong of the two-part “eligible-deserving” asylum analysis. See, e.g., Ben Hamida, 478 F.3d at 736; Chen, 447 F.3d at 472. The IJ found that Mapouya was not eligible for asylum, but neither analyzed nor answered the second question of whether Mapouya deserved asylum. The latter question is, therefore, a matter of first instance appropriately decided by the IJ and BIA. The IJ must make the proper legal inquiries and conclusions on Mapouya‘s asylum request after “additional investigation or explanation,” Thomas, 126 S.Ct. at 1615, and, accordingly, his or her own credibility determination.
2. The Well-Founded Fear of Persecution and Changed Country Conditions
After making his adverse credibility determination, the IJ found that even if Mapouya was credible, he has “not shown that he has a well-founded fear of persecution in light of the changed circumstances in his country.” The BIA, addressing only the rebuttable presumption evidence,19 elaborated on the IJ‘s conclusion. The BIA reasoned that “even if the respondent testified credibly and established past persecution, the record contains evidence sufficient to rebut the presumption that the respondent‘s life or freedom would be threatened in the future.” Specifically, the BIA cited specific passages from the Country Reports that allegedly demonstrated that Mapouya “no longer has a well-founded fear of future persecution.”20
An applicant can establish the persecution element in an asylum application by two alternative methods: (1) prove that he or she has suffered past persecution, or (2) show that he or she has a well-founded fear of future persecution. Gilaj, 408 F.3d at 283. See also Mikhailevitch, 146 F.3d at 389 (citing
If past persecution raises the rebuttable presumption, the government “may rebut that presumption by showing that conditions in the applicant‘s country have changed so ‘that the applicant no longer has a well-founded fear of persecution.‘” Filipi, 127 Fed.Appx. at 852 (quoting
For guidance in this case, the Liti opinion is instructive. In Liti, the majority
Similar reasoning can be found in other Sixth Circuit cases. See, e.g., Daneshvar v. Ashcroft, 355 F.3d 615, 625 (6th Cir.2004) (denying asylum based on evidence of changed country conditions in Iran when petitioner “has presented no credible evidence that he will be singled out for different treatment if he is deported back to Iran.“); Cacani v. Gonzales, 188 Fed.Appx. 444, 446-47 (6th Cir.2006) (denying review of asylum petition because generalized evidence offered to rebut changed country conditions evidence did “not demonstrate that [petitioner] would face the requisite individualized threat of harm.“)
Here, the situation is somewhat different than Liti, because Mapouya presented corroborating evidence not from his own mouth, but from two independent sources in Africa, and that corroborating evidence shows an individualized threat of harm to Mapouya. Indeed, in Liti, the majority faulted petitioners for not getting corroborating evidence from “family members still living in Albania,” Liti, 411 F.3d at 640, who presumably could have provided affidavits of “on the ground” conditions in Albania to refute State Department reports of changed country conditions. In Mapouya‘s case, perhaps the letters were properly discredited for some reason, but this does not appear anywhere in either the IJ‘s or BIA‘s discussion of changed country conditions. Even if the government can prove that country conditions in Congo have changed since 1997, the government must also show by a preponderance of the evidence that such change negates Mapouya‘s individualized well-founded fear of persecution. The letters, which specifically inform that ethno-political violence continues notwithstanding the Country Reports’ generalized description, and that Mapouya is a wanted man in the government‘s eyes, needed to be carefully weighed against the Country Reports in order for a proper decision to have been made. Therefore the BIA‘s decision is not supported by substantial evidence, and the BIA or IJ on remand must carefully weigh Mapouya‘s corroborating evidence against the Country Reports.
C. Petitioner‘s Withholding of Removal Application
Mapouya also requested withholding of removal pursuant to
Here, the IJ concluded that Mapouya was not entitled to withholding of removal, but provided no legal analysis or reasoning for his conclusion.22 Although “an applicant who fails to meet the statutory eligibility requirements for asylum must necessarily fail to meet the requirements for withholding of removal,” Ben Hamida, 478 F.3d at 741 (citing Allabani v. Gonzales, 402 F.3d 668, 675 (6th Cir.2005)), the IJ failed to cite even this well-settled proposition to support his withholding conclusion. As a corollary, the IJ‘s erroneous adverse credibility finding also underlies his withholding of removal denial. Therefore the BIA or IJ hearing the case on remand must also analyze Mapouya‘s withholding of removal claim after making a proper credibility determination.
D. Petitioner‘s Application for Relief Pursuant to the Conventions Against Torture
Mapouya also petitions for review of the denial of his Convention relief claim. To establish entitlement to such relief, an applicant must prove “that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” Singh v. Ashcroft, 398 F.3d 396, 404 (6th Cir.2005) (citing Pilica v. Ashcroft, 388 F.3d 941, 951 (6th Cir.2004) (in turn quoting
To assess the risk of torture, the adjudicator must consider the possibility of future torture, including (1) evidence of past torture inflicted upon the applicant; (2) evidence that the applicant can relocate to a part of the country of removal where
In Mapouya‘s case, the IJ only briefly addressed his claim under The Convention, stating simply that “the evidence falls well short of a grant under that section of law.” The IJ based this conclusion on the fact that Mapouya “testified that he was repeatedly beaten for months on end but brings forward no medical evidence and does not corroborate his claim in any meaningful way.” We find the IJ‘s scant legal analysis and reasoning inadequate, however.
First, the IJ‘s adverse credibility determination on the asylum question erroneously infected his analysis of Mapouya‘s Convention claim. See Ndiaye v. Gonzales, 184 Fed.Appx. 458, 463 (6th Cir.2006) (reversing and remanding on petitioner‘s claim under The Convention when IJ‘s denial of Convention relief was based entirely on his adverse credibility determination on petitioner‘s asylum and withholding of removal claims) (citing, inter alia, Kamalthas v. INS, 251 F.3d 1279, 1280 (9th Cir.2001); Mansour v. INS, 230 F.3d 902, 908 (7th Cir.2000) (both stating “[w]e are not comfortable with allowing a negative credibility determination in the asylum context to wash over the torture claim.“); Zubeda v. Ashcroft, 333 F.3d 463, 479 (3d Cir.2003) (finding error in the IJ‘s “allowing rulings on [petitioner‘s] asylum and withholding of deportation claim to control her claim under [The Convention]“)).
Second, and to the extent that the IJ‘s order constitutes an additional Convention-specific adverse credibility finding, that (second) negative credibility determination is similarly unsupported by substantial evidence. Critically, “an alien‘s allegations of torture are not automatically incredible simply for failure to produce corroborating documentary evidence.” Singh, 398 F.3d at 406 (citing
Third, the IJ did not analyze Mapouya‘s Convention claim through the lens of the four factors enumerated in Ali and outlined above.
Accordingly we also remand Mapouya‘s claim pursuant to The Convention as a matter of first instance under Ventura and Thomas.
E. Petitioner‘s Due Process Claim
Mapouya claims that he suffered a due process violation because the IJ refused to allow him to call Viong first. According to Mapouya‘s argument, the IJ‘s decision was prejudicial to his case because the IJ based the adverse credibility determination “on the basis of a perceived inconsistency in this case; the testimony of [Mapouya‘s] witness.” Mapouya argues that the discrepancy on whether he fled to Mali or Gabon could have been rectified had the IJ allowed Mapouya to call Viong first. We find Mapouya‘s arguments unavailing.
Aliens are entitled to due process of law in deportation proceedings. Gilaj, 408 F.3d at 290 (citing Denko, 351 F.3d at 726) (in turn citing Reno v. Flores, 507 U.S. 292, 306, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993)). Due process requires
While Mapouya may be able to establish prejudice from the IJ‘s decision (i.e. the discrepancy in testimonies was one factor the IJ cited for his adverse credibility finding, which in turn affected the IJ‘s ultimate holdings), Mapouya has not demonstrated that the outcome of his case would have been different if the IJ had allowed Viong to testify first. Importantly, the IJ hinged his adverse credibility determination on two additional factors unrelated to Viong‘s testimony and the Mali/Gabon discrepancy, as noted previously. The BIA determined that Mapouya failed to establish that the IJ‘s preferred order of witness testimony constituted a violation of his due process rights. We agree and affirm the BIA‘s decision on the due process claim. Our ultimate conclusion, however, renders Mapouya‘s due process claim moot.
IV. CONCLUSION
Upon review, we conclude that the IJ made an erroneous adverse credibility finding on the asylum question, and that this negative credibility determination permeates and infuses the IJ‘s subsequent findings and conclusions on Mapouya‘s additional requests for relief. Consequently, the IJ‘s order lacks adequate legal analysis and reasoning to support the ultimate conclusions contained therein. On remand, the agency (whether the BIA or an IJ) must rehear the case in its entirety and make the proper inquiries and legal conclusions to reach a credibility determination of its own, and then conduct the two-step asylum analysis. Similarly, the agency must make the proper inquiry and legal conclusions, supported by legal analysis and reasoning, on Mapouya‘s withholding of removal and Convention claims.
We urge that, on remand, a different immigration judge be assigned to any further proceedings. See Cham v. Gonzales, 445 F.3d 683, 694 (3d Cir.2006) (citing Sukwanputra v. Gonzales, 434 F.3d 627, 638 (3d Cir.2006) (“[W]hile we recognize that the assignment of an immigration judge is within the province of the Attorney General, if on remand an [immigration judge‘s] services are needed, we believe the parties would be far better served by the assignment to those proceedings of a different [immigration judge].“) (quoting Korytnyuk v. Ashcroft, 396 F.3d 272, 287 n. 20 (3d Cir.2005) (citations and internal quotation marks omitted)). See also, Chen v. Gonzales, 447 F.3d 468, 477 (6th Cir. 2006) (“[We remand] this matter to the BIA with directions to return the case to the immigration court, preferably before a different judge, for reconsideration and for any further proceedings that may be considered necessary and consistent with this opinion.“); Guchshenkov v. Ashcroft, 366 F.3d 554, 560 (7th Cir.2004) (“We urge that these two cases be reassigned to other immigration judges.“).
Accordingly, we hereby GRANT the petition for review, VACATE the decisions and orders below, and REMAND to the BIA for reconsideration and for any further proceedings that may be considered necessary and consistent with this opinion.
CLAY, Circuit Judge, dissenting.
The Board of Immigration Appeals (“BIA“) held that changed country conditions in the Republic of Congo rebutted any presumption of a well-founded fear of
In sum, substantial evidence supports the BIA‘s factual findings. Neither Petitioner nor the majority point to evidence in the record that undermines this conclusion. I would affirm the judgment of the BIA.
III.
For the foregoing reasons, I respectfully dissent.