Soumahoro v. Gonzales

• Decision Date: 19 July 2005
• Docket Number: No. 04-2157.,04-2157.
• Citation: 415 F.3d 732
• Parties: Ismaila SOUMAHORO, Petitioner, v. Alberto R. GONZALES, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

415 F.3d 732

Ismaila SOUMAHORO, Petitioner, v. Alberto R. GONZALES, Respondent.

No. 04-2157.

United States Court of Appeals, Seventh Circuit.

Argued June 1, 2005.

Decided July 19, 2005.

Jeremy L. McKinney (argued), McKinney & Justice, Greensboro, NC, for Petitioner.

Karen Lundgren, Office of the District Counsel, Chicago, IL, Susan C. Lynch (argued), Victor M. Lawrence, Department of Justice, Washington, DC, for Respondent.

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 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 sizeable 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 military 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 enemy 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 headquarters. 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.

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 violence 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 demonstrations, 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 authorities, 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 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 involvement 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 peacekeepers. The Country Report used at the hearing in March 2003 was dated March 4, 2002, and thus does not include 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 documentation 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 documents. 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, speculated 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 reasons, 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 constitute 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 supporting documents were in transit with DHL. The IJ listed several types of documents he said Soumahoro should have 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...