Ayi v. Gonzales

• Decision Date: 21 August 2006
• Docket Number: No. 05-3320.,05-3320.
• Citation: 460 F.3d 876
• Parties: Vissinto K. AYI, Petitioner, v. Alberto R. GONZALES, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

460 F.3d 876

Vissinto K. AYI, Petitioner, v. Alberto R. GONZALES, Respondent.

No. 05-3320.

United States Court of Appeals, Seventh Circuit.

Argued March 29, 2006.

Decided August 21, 2006.

COPYRIGHT MATERIAL OMITTED

Lisa L. Clay (argued), McGuirewoods, Chicago, IL, for Petitioner.

Karen Lundgren, Department of Homeland Security, Office of the Chief Counsel, Chicago, IL, Edward Siskel (argued), Office of the U.S. Attorney, Chicago, IL, for Respondent.

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 opposition 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 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 opposition 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 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 release 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 published 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 car was vandalized and set on fire. After the second breakin, 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 U.S.C. § 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 withholding of removal, relief under the Convention Against Torture, and alternatively, voluntary departure. He appeared before the IJ for a merits hearing on his asylum application on March 23, 2004. The merits hearing was continued until September 27, 2004 and Ayi again attempted 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 remaining 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 omitted).

The IJ concluded that Ayi's testimony was unconvincing 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 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 government. 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 inadequate." Id.; see also Gontcharova, 384 F.3d at 877.

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