Mamadou Diallo, a native citizen of Mauritania, requested that the Immigration and Naturalization Service (INS) 1 grant him asylum. The Agency refused, reasoning that Diallo had not been persecuted in Mauritania, did not have a well-founded fear of future persecution 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 credibility determination, and (3) failed to support its decision on fear of future prosecution with reasonable or substantial evidence, we must remand for further proceedings consistent 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 *691 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 organization 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 without the opportunity to appear before a judge or to be represented 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 immediately 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 former acquaintance from Mauritania in a rented apartment. 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. Dial-lo 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 demonstrating 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
Diallo appealed the immigration judge’s decision to the Board of Immigration Appeals (BIA), which summarily affirmed 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. Ash
*692
croft,
The question of how to determine whether a refugee has firmly resettled in another country prior to her arrival in 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 before the enactment of the current statute and agency rules on the subject.
See United States v. Rumsa,
[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 necessary consequence of his or her flight from persecution, 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 significant 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 immigration 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 employment available to the refugee; and the extent to which the refugee received permission to hold property and to enjoy other rights and privileges, such as travel documentation that includes a right of *693 entry or reentry, education, public relief, or naturalization, 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.
Mussie v. U.S. INS,
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 regulations 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,
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,
Despite the metamorphosis in the focus of firm resettlement 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,
We recognize, as did the Third Circuit, that “circumstances 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 resettlement under § 208.15 in that manner.”
Abdille,
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 respondent 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 immigration 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).
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.
A finding of firm resettlement is a factual determination that must be upheld if it is supported “by reasonable, substantial, and probative evidence on the record considered as a whole.”
INS v. Elias-Zacarias,
Even if the immigration judge were applying the now outdated “totality of the circumstances” analysis, his finding of firm resettlement still would not be supported by substantial evidence and the reasonable fact-finder would be compelled to make a finding to the contrary. Most significantly, the immigration judge erred by ignoring Diallo’s testimony that he had no documents permitting him to live or work in Senegal. An immigration judge may not simply ignore record evidence that favors the applicant’s case.
See Vujisic v. INS,
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 eases 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 Circuit’s decision in Cheo v. INS, discussed earlier, which held 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,
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 statutorily protected categories.
See 8
C.F.R. § 208.13(b);
Olowo v. Ashcroft,
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,
Were we reviewing Diallo’s claim
de novo,
we might be inclined to find that, after facing six months unlawful imprisonment combined with hard labor, physical torture (recall 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 persecution, 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,
Other cases from this circuit support the view that Diallo’s treatment did amount to past persecution. In
Asani v. INS,
Our review, however, is not
de novo.
Credibility determinations, findings of past persecution, and findings of a well-founded fear of future persecution are all factual determinations owed our strong deference.
Medhin v. Ashcroft,
There are many examples of the immigration judge’s contradictory 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 authorities 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 quo *699 tation 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:
The respondent did not provide any documentation of his Mauritanian citizenship until the date of the hearing. 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 footnote, 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 Dial-lo’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 imprisonment, hard labor, physical torture, and expulsion did not amount to persecution.
This type of confusion over the immigration judge’s credibility determination does not necessarily compel a conclusion that Diallo is entitled to asylum, but nevertheless warrants a remand to untangle the basis for the immigration judge’s decision.
See Guchshenkov v. Ashcroft,
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 applicant proves past persecution, she creates a rebuttable presumption that she has a well-founded fear of future persecution.
Capric,
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 *700 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 established 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 Asylum Claims & Country Conditions
(“Asylum Report”)). Again, we simply cannot tell whether the immigration judge was crediting Diallo’s claims or not. Because direct authentication 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,
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,
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 membership in FLAM, but according to his own report, when the officers came to his home in the middle of the night, confiscated his papers and hauled him to prison, they yelled at him “eonfirmfing] 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 agreements. (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 persecution depends in large part on the credibility of his testimony. 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 opposi *701 tion 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 subjectively 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 different ways in the course of his immigration proceedings. We review claims of due process violations in removal proceedings
de novo. Kuschchak v. Ashcroft,
Finally, Diallo claims that the immigration judge’s aggressive 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)(l). 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 violations.
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 determination 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 country. 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 Paet, Reversed and Remanded in Part.
Notes
. 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 proceedings. To avoid confusion, however, we will refer to the former INS as lire "Agency.”
. Pursuant to 8 C.F.R. § 1208.3(b)(3), an application for asylum is also considered an application for withholding of removal.
. 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,
. Prior to 1990, firm resettlement was but one factor that an immigration judge weighed in deciding whether to grant asylum.
See Abdille v. Ashcroft,
. The government seems to be ignoring the language of the statute that requires an ''offer” of "some form of permanent resettlement.” 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,
. "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,
. 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 tes *696 tified clearly that the two men were not related. (R. at 131-32).
. 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 assessment of all of the underlying facts of each applicant's claim.