Diallo, Mamadou v. Ashcroft, John D.

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 03-1876

MAMADOU DIALLO

Petitioner,

v.

JOHN D. ASHCROFT,

Respondent.

____________

On Petition to Review an Order of the

Board of Immigration Appeals.

No. A76-672-318

____________

ARGUED JANUARY 13, 2004—DECIDED AUGUST 26, 2004

____________

Before BAUER, MANION, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge. Mamadou Diallo, a native citizen

of Mauritania, requested that the Immigration and Natural-

ization Service (INS)1 grant him asylum. The Agency refused,

reasoning that Diallo had not been persecuted in Maurita-

nia, did not have a well-founded fear of future persecution

1

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 pro-

ceedings. To avoid confusion, however, we will refer to the former

INS as the “Agency.”

2 No. 03-1876

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 credibil-

ity determination, and (3) failed to support its decision on

fear of future prosecution with reasonable or substantial

evidence, we must remand for further proceedings consis-

tent 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 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 org-

anization 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 with-

out the opportunity to appear before a judge or to be repre-

sented 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 im-

mediately 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

No. 03-1876 3

former acquaintance from Mauritania in a rented apart-

ment. 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. Diallo 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 demon-

strating 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

2

Pursuant to 8 C.F.R. § 1208.3(b)(3), an application for asylum

is also considered an application for withholding of removal.

3

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, No. 03-1852, 2003 WL

(continued...)

4 No. 03-1876

Diallo appealed the immigration judge’s decision to the

Board of Immigration Appeals (BIA), which summarily af-

firmed 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. Ashcroft, 358 F.3d 464,

465 (7th Cir. 2004). That decision held that the final blow

to Diallo’s asylum claim was that he had firmly resettled in

Senegal prior to his arrival in the United States. “Firm

resettlement,” however, is an odd tool to use to strike the

final blow to an asylum claim, since under the current

statutory iteration of the doctrine of firm resettlement, an

immigration court must deny asylum to any refugee if “the

alien was firmly resettled in another country prior to arriv-

ing in the United States.” 8 U.S.C. § 1158(b)(2)(A)(vi).4 That

being said, it seems the logical place to begin rather than

end an assessment of whether a refugee is entitled to

asylum in this country. If the doctrine of firm resettlement

sounds the death knell on the asylum-seeker’s claim, there

is simply no need to continue on to determine whether an

asylum-seeker was the victim of past persecution or has a

well-founded fear of future persecution.

The question of how to determine whether a refugee has

firmly resettled in another country prior to her arrival in

3

(...continued)

23676865 at *7 (7th Cir. July 26, 2004).

4

Prior to 1990, firm resettlement was but one factor that an

immigration judge weighed in deciding whether to grant asylum.

See Abdille v. Ashcroft, 242 F.3d 477, 483 n.4 (3d Cir. 2001)

(reviewing the history of the firm resettlement bar to asylum

claims). Consequently, the immigration judge’s citation to Matter

of Soleimani, 20 I.&N. Dec. 99 (BIA 1989) for the proposition that

“firm resettlement in another country is a factor to be evaluated

in determining whether asylum should be granted as a matter of

discretion” is incorrect. Because firm resettlement is currently a

mandatory bar to the grant of asylum, it is no longer merely “one

factor” to be considered.

No. 03-1876 5

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 be-

fore the enactment of the current statute and agency rules

on the subject. See United States v. Rumsa, 212 F.2d 927

(7th Cir. 1954). Although the statute mandating the denial

of asylum for refugees who have firmly resettled (8 U.S.C.

§ 1158(b)(2)(A)(vi)) does not itself define “firm resettlement”

or offer instruction on how firm resettlement should be

determined, the agency regulations set forth in straight-

forward language how an immigration judge should proceed

in making that determination. 8 C.F.R. § 208.15. The

regulations provide that:

[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 nec-

essary consequence of his or her flight from pers-

ecution, 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 signifi-

cant 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 immi-

gration 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 em-

ployment available to the refugee; and the extent to

which the refugee received permission to hold

6 No. 03-1876

property and to enjoy other rights and privileges,

such as travel documentation that includes a right

of entry or reentry, education, public relief, or natu-

ralization, 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. Musssie v. INS, 172 F.3d 329, 332 (4th Cir.

1999); Cheo v. INS, 162 F.3d 1227, 1229 (9th Cir. 1998);

Salazar v. Ashcroft, 359 F.3d 45, 50 (1st Cir. 2004). For the

refugee who has failed to rebut the presumption of firm

resettlement, all hope is not lost. She may also demonstrate

that she falls within one of the two exceptions to firm reset-

tlement articulated in section (a) and (b) of the regulation.

8 C.F.R. § 208.15(a), (b).

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 regula-

tions 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, 374 F.3d 606, 610-11 (8th Cir. 2004); Abdille, 242

F.3d at 486.

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, 402 U.S. 49, 56, 91 S. Ct. 1312, 28 L. Ed. 2d 592 (1971);

Abdille, 242 F.3d at 483 n.4. Under a discretionary scheme,

where firm resettlement is but one factor to consider in

No. 03-1876 7

granting or denying an asylum application, an adjudicator

could consider factors such as the length of stay, ability to

work, familial ties, economic conditions in the third country,

and the like as other factors that militate for or against a

grant of asylum. In 1990, however, the INS amended its

regulations to make firm resettlement a mandatory bar to

asylum. 8 C.F.R. § 208.14 (1990). Later, Congress codified

the mandatory prohibition on grants of asylum to firmly

resettled refugees when it passed the Illegal Immigration

Reform and Illegal Immigrant Act of 1996. 8 U.S.C.

§ 1158(b)(2)(A)(vi). These new regulations “reoriented the

central inquiry of firm resettlement to focus the adjudicator

on the actual existence vel non of an offer of permanent

resettlement.” Robert D. Sloane, An Offer of Firm Resettle-

ment, 36 Geo. Wash. Int’l L. Rev. 47, 57 (2004). Such a focus

is consistent with the goals of asylum law. As the Third

Circuit points out, “[a]bsent some government dispensation,

an immigrant who surreptitiously enters a nation without

its authorization cannot obtain official resident status no

matter his length of stay, his intent, or the extent of the

familial and economic conditions he develops. Citizenship

or permanent residency cannot be gained by adverse

possession.” Abdille, 242 F.3d at 487.

Despite the metamorphosis in the focus of firm resettle-

ment 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, 172 F.3d at

331-32, Cheo, 162 F.3d at 1229. The Third and Eighth

Circuits’ obedience to the language and purpose of the reg-

ulation seems the more rational path, and for this reason

we agree that the primary and most important inquiry in

any analysis of firm resettlement is whether or not the

stopover country has made some type of offer of permanent

resettlement. Abdille, 242 F.3d at 480; Rife, 374 F.3d at

610-11.

8 No. 03-1876

We recognize, as did the Third Circuit, that “circum-

stances 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 resettle-

ment under § 208.15 in that manner.” Abdille, 242 F.3d at

486-87. In that case, the Third Circuit noted in dicta, the

immigration judge or BIA “may find it necessary to rely on

non-offer-based factors, such as the length of an alien’s stay

in a third country, the alien’s intent to remain in the

country, and the extent of the social and economic ties

developed by the alien, as circumstantial evidence of a

government-issued offer.” Id. at 487. The Third Circuit sees

these non-offer-based elements as surrogates for direct evi-

dence of a formal offer only “if they rise to a sufficient level

of clarity and force, which we need not delineate here.” Id.

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 respon-

dent 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 immi-

gration 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).

No. 03-1876 9

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. 162 F.3d at 1229. But

Cheo is not the case to turn to in order to alleviate our

concern that the immigration judge failed to consider any

evidence or lack thereof of an offer vel non of permanent

resettlement. In fact, in Cheo, 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.

at 1229. In this way, its analysis was not much different

from the Third Circuit’s in Abdille when it announced that

non-offer based elements may be used as surrogates for di-

rect evidence only when there is no evidence of some formal

offer of permanent resettlement. Abdille, 242 F.3d at 486-

87. Neither the Ninth Circuit’s approach in Cheo nor the

Third Circuit’s approach in Abdille allows an immigration

judge to ignore completely the regulation’s requirement to

consider the existence of a formal offer or the lack thereof.

The applicants in the Cheo case did not present any evidence

of a lack of a formal offer. In this case, Diallo has presented

evidence to the contrary. He presented undisputed testi-

5

The government seems to be ignoring the language of the stat-

ute that requires an “offer” of “some form of permanent resettle-

ment.” 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, 242

F.3d at 487. The “some other type of permanent resettlement” lan-

guage, likely was added to account for the great variety in names

and types of permanent offers of settlement in countries around

the globe and was not meant to be a catch-all that would undue

the requirement of a governmental “offer.”

10 No. 03-1876

mony that he had no legal right to live or work in Senegal.6

The immigration judge erred by failing to consider this

evidence at all.

A finding of firm resettlement is a factual determination

that must be upheld if it is supported “by reasonable, sub-

stantial, and probative evidence on the record considered as

a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S. Ct.

812, 117 L. Ed. 2d 38 (1992); Krouchevski v. Ashcroft, 344

F.3d 670, 673 (7th Cir. 2003). We reverse only if the

evidence is such that a reasonable fact-finder would be

compelled to reach an opposite conclusion. Krouchevski, 344

F.3d at 673. This “substantial evidence” review is highly

deferential and does not allow this court to overturn an agency

determination simply because we would have decided the

case differently. Capric, 355 F.3d at 1086. Nevertheless, the

immigration judge below failed to consider the single factor

that agency regulations require him to consider. Had he

done so he would be, as we are, compelled to find that

Diallo had not firmly resettled in Senegal.

Even if the immigration judge were applying the now out-

dated “totality of the circumstances” analysis, his finding of

firm resettlement still would not be supported by sub-

stantial evidence and the reasonable fact-finder would be

compelled to make a finding to the contrary. Most signifi-

cantly, the immigration judge erred by ignoring Diallo’s

testimony that he had no documents permitting him to live

6

“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, 355 F.3d 1038, 1039

(7th Cir. 2004), Capric v. Ashcroft, 355 F.3d 1075, 1085 (7th Cir.

2004), Korniejew v. Ashcroft, 371 F.3d 377, 382 (7th Cir. 2004),

Uwase v. Ashcroft, 349 F.3d 1039, 1041 (7th Cir. 2003); Georgis v.

Ashcroft, 328 F.3d 962, 969 (7th Cir. 2003). The immigration judge

was simply wrong when he concluded that the Ninth Circuit’s

parallel holding did not apply in this Circuit. See (R. at 106-07).

No. 03-1876 11

or work in Senegal. An immigration judge may not simply

ignore record evidence that favors the applicant’s case. See

Vujisic v. INS, 224 F.3d 578, 581 (7th Cir. 2000) (immi-

gration judge and BIA erred by ignoring evidence of feared

persecution and current conditions in applicant’s native

country). Diallo’s testimony, if credible (and the immigration

judge never found that it was not) was “sufficient to sustain

the burden of proof without corroboration.” 8 C.F.R.

§ 208.13(a). See footnote 6, supra. Furthermore, in assess-

ing Diallo’s social and familial ties, the immigration judge

found it significant that Diallo lived with a friend and

family member while in Senegal. In the first instance, the

immigration judge’s factual determination was simply

incorrect. While in Senegal, Diallo lived with a man he had

met in Mauritania. The record firmly establishes that the

men were not related. (R. at 131-32).7 Moreover, we fail to see

how living with a Mauritanian acquaintance in Senegal

offers any evidence whatsoever of firm resettlement.

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

cases 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 Cir-

cuit’s decision in Cheo v. INS, discussed earlier, which held

7

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 testified clearly

that the two men were not related. (R. at 131-32).

12 No. 03-1876

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 (BIA 1989)) are no more helpful in support-

ing the immigration judge’s conclusion that Diallo had

firmly resettled in Senegal, as all contained compelling

evidence of firm resettlement other than the mere passage

of time. See Mussie, 172 F.3d at 332 (petitioner lived in

Germany for four years; German government gave petitioner

asylum, travel documents, government assistance for trans-

portation, food, rent and education; petitioner held a job,

paid taxes and rented her own apartment); Vang v. INS,

146 F.3d 1114, 1115 (9th Cir. 1998) (appellate court offered

no details as to the factors the BIA applied in determining

that petitioner was resettled, but in addition to living in

France from the age of four to sixteen, applicant arrived in

France as part of an official United Nations refugee pro-

gram and also received French travel documents); Yang v.

INS, 79 F.3d 932, 934 (9th Cir. 1996) (for purposes of the

appeal, petitioners conceded that they were firmly resettled

in France and argued only that the regulation on firm

resettlement was beyond the authority of the INS; conse-

quently the Yang Court had no opportunity to comment on

No. 03-1876 13

the factors that constituted the Yang’s firm resettlement in

France.); Farbakhsh v. INS, 20 F.3d 877, 880 (8th Cir.

1994) (petitioner lived in Spain for four years, intended to

stay there as evidenced by his application for asylum, and

had strong familial ties there); Abdalla v. INS, 43 F.3d

1397, 1399 (10th Cir. 1994) (petitioner lived in and possessed

a residence visa/permit for the United Arab Emirates); see

also Rife, 374 F.3d at 609, 611 (finding firm resettlement

where Israeli government offered petitioners permanent re-

settlement, issued certificates evidencing citizenship, and

issued passports, none of which had ever been revoked);

Salazar v. Ashcroft, 359 F.3d 45, 47-48 (1st Cir. 2004) (finding

firm resettlement where petitioner lived in Venezuela for

fourteen months, worked and rented an apartment, and

received a Venezuelan passport with a resident stamp). In

short, we cannot find a single published circuit court opin-

ion that relied on as little as this immigration judge relied

on to determine that an applicant for asylum had firmly

resettled in a third country. We are compelled, therefore, to

reverse the Agency’s determination on firm resettlement.

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 stat-

utorily protected categories. See 8 C.F.R. § 208.13(b); Olowo

v. Ashcroft, 368 F.3d 692, 700-01 (7th Cir. 2004). An

applicant who successfully establishes past persecution is

presumed to have a well-founded fear of future persecu-

tion—a presumption that the Agency can rebut by demon-

strating a change in circumstances or a reasonable ability

on the applicant’s part to relocate within the applicant’s

country. 8 C.F.R. § 208.13(b)(1); Capric, 355 F.3d at 1084. In

the alternative, the applicant can establish a well-founded

fear of future persecution if the fear is “subjectively genuine

14 No. 03-1876

and objectively reasonable in light of the credible evidence.”

Capric, 355 F.3d at 1084-85.

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, 999 F.2d

1156, 1158 (7th Cir. 1993). It must be more than mere

“harassment,” and can include, “detention, arrest, interro-

gation, prosecution, imprisonment, illegal searches, confis-

cation of property, surveillance, beatings, torture, behavior

that threatens the same, and non-life-threatening behavior

such as torture and economic deprivation if the resulting

conditions are sufficiently severe.” Capric, 355 F.3d at 1084

(internal citations omitted).

Were we reviewing Diallo’s claim de novo, we might be in-

clined to find that, after facing six months unlawful im-

prisonment combined with hard labor, physical torture (re-

call 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 pers-

ecution, 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, 77 F.3d 210, 213

(7th Cir. 1996), the petitioner was subject to an illegal search,

was interrogated twice, and received threatening phone

calls, but she never was imprisoned, forced to undergo hard

labor, or physically tortured. This court upheld the immi-

gration judge’s finding that Borca was harassed and intim-

idated, but not persecuted. Id. at 215. Similarly, Barbara

Skalak was jailed twice for interrogation, but each incarcer-

ation lasted for only three days—events that this court

concluded were “mild persecution” falling short of the stat-

utory criteria for “persecution” that triggers a grant of asylum.

Skalak v. INS, 944 F.2d 364, 365 (7th Cir. 1991). And in the

No. 03-1876 15

third case, Cuevas v. INS, 43 F.3d 1167, 1170-71 (7th Cir.

1995), the petitioners were unable to make any connection

between the threats made against them (and the death of

their nephew and the stabbing of their son) and the armed

wing of the communist party of the Philippines (NPA). Al-

though they were involved in a bitter land dispute with

squatters whom they believed to be acting on behalf of the

NPA, there was no evidence that the squatters were acting

on behalf of a governmental power, or even if they were,

that the squatting amounted to persecution. Id. at 1171.

Other cases from this circuit support the view that Diallo’s

treatment did amount to past persecution. In Asani v. INS,

154 F.3d 719, 724 (7th Cir. 1998), we found a single deten-

tion in harsh conditions where the police beat the petitioner

and knocked out his teeth sufficient to establish past pers-

ecution. And in Vaduva v. INS, 131 F.3d 689, 690 (7th Cir.

1997) we were convinced that the police had persecuted Mr.

Vaduva when, during a single beating, they punched him in

the face and broke his finger. Historically, short detentions

or detentions without physical abuse seem to have been less

apt to reach the “persecution” threshold required by this

court. See Dandan v. Ashcroft, 339 F.3d 567, 573-74 (7th

Cir. 2003) (one-time three-day detention with beatings and

food deprivation does not compel a finding of past persecu-

tion); Zalega v. INS, 916 F.2d 1257, 1260 (7th Cir.1990)

(applicant was interrogated on several occasions, arrested,

detained once for thirty-six hours, and had home searched

and property confiscated, but was never beaten, tortured, or

forced to perform hard labor).8

8

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 assess-

ment of all of the underlying facts of each applicant’s claim.

16 No. 03-1876

Our review, however, is not de novo. Credibility determi-

nations, findings of past persecution, and findings of a well-

founded fear of future persecution are all factual determina-

tions owed our strong deference. Medhin v. Ashcroft, 350

F.3d 685, 688-89 (7th Cir. 2003). Because we review the

BIA’s factual determinations under this highly deferential

standard, we may not reverse a finding of no past persecu-

tion simply because we believe it was wrongly decided.

Rather, we must be convinced that the evidence compels a

decision contrary to the Board’s. Elias-Zacarias, 502 U.S. at

481 n.1; Dandan, 339 F.3d at 572. It is a high standard to

meet, and ordinarily we would be compelled to defer to the

immigration judge’s finding here. But the limits of our defer-

ential standard of review are tested when we are asked to

defer to findings of fact that the immigration judge has not

made. In this case the immigration judge failed to make any

credibility findings at all. Instead, the decision states, “even

assuming that the respondent’s claims are true,” and then

continues on to conclude that Diallo has not established that

he suffered any past persecution. (R. at 43). In this case,

however, the immigration judge’s decision is so infected

with doubts about Diallo’s credibility that it is difficult to

determine whether the immigration judge really did assume

the truth of his claims.

There are many examples of the immigration judge’s con-

tradictory 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 authori-

ties 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 quotation 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:

No. 03-1876 17

The respondent did not provide any documentation of

his Mauritanian citizenship until the date of the hear-

ing. 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 foot-

note, 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 Diallo’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 im-

prisonment, hard labor, physical torture, and expulsion did

not amount to persecution.

This type of confusion over the immigration judge’s cre-

dibility determination does not necessarily compel a conclu-

sion that Diallo is entitled to asylum, but nevertheless

warrants a remand to untangle the basis for the immigra-

tion judge’s decision. See Guchshenkov v. Ashcroft, 366 F.3d

554, 559 (7th Cir. 2004) (“A remand is required because the

immigration judge’s analysis of their application is unrea-

soned. She ‘determined that the respondent is basically

credible; however, his testimony is not inherently persua-

sive.’ We do not understand what this means.”); Muhur v.

Ashcroft, 355 F.3d 958, 961 (7th Cir. 2004) (failure to make

a credibility determination regarding whether petitioner

was or was not a Jehovah’s Witness requires remand); Niam

v. Ashcroft, 354 F.3d 652, 658 (7th Cir. 2004) (immigration

judge’s failure to make a credibility determination left a

18 No. 03-1876

“yawning void” in the decision); see also Krastev v. INS, 292

F.3d 1268, 1279 (10th Cir. 2002) (“we caution the BIA that

its practice of simply assuming, without deciding, credibility

is not favored”); Cordon-Garcia v. INS, 204 F.3d 985, 993

(9th Cir. 2000) (statements such as “even were we to

assume that the respondent was a credible witness” do not

allow the reviewing court to “undertake a meaningful analysis

of Petitioner’s credibility and its effect on her application for

asylum”).

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 ap-

plicant proves past persecution, she creates a rebuttable

presumption that she has a well-founded fear of future

persecution. Capric, 355 F.3d at 1084. Even if an applicant

cannot create a presumption of a well-founded fear of future

persecution by affirmatively demonstrating past persecu-

tion, she can demonstrate a well-founded fear of persecution

if the fear is subjectively genuine and objectively reason-

able. Id. at 1085. The subjective fear component turns

largely on the applicant’s credibility and therefore a

credibility determination is vital to an assessment of the

applicant’s well-founded fear of future persecution. See id.

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 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 estab-

lished 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

No. 03-1876 19

Asylum Claims & Country Conditions (“Asylum Report”)).

Again, we simply cannot tell whether the immigration judge

was crediting Diallo’s claims or not. Because direct authen-

tication 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,

355 F.3d at 1085.

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, 354 F.3d. at 658-69. In any case,

the Asylum Report’s conclusion that the authorities allow

“many” opposition groups to publically disagree with the

government is of no solace to Diallo if FLAM is not one of

the “many” whose criticism is tolerated. The immigration

judge’s reference to this one inconclusive sentence of the

Asylum Profile simply is not the type of reasoned analysis

that is sufficient to support an administrative decision that

Diallo does not have a well-founded fear of future persecu-

tion based on his political beliefs. See Guchshenkov, 366

F.3d at 560.

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 mem-

bership in FLAM, but according to his own report, when the

20 No. 03-1876

officers came to his home in the middle of the night, con-

fiscated his papers and hauled him to prison, they yelled at

him “confirm[ing] 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 agree-

ments. (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 persecu-

tion depends in large part on the credibility of his testi-

mony. 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 oppo-

sition 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 sub-

jectively 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 differ-

ent ways in the course of his immigration proceedings. We

review claims of due process violations in removal proceed-

ings de novo. Kuschchak v. Ashcroft, 366 F.3d 597, 602 (7th

Cir. 2004). Diallo claims that his due process rights were

violated when he was declared a “no show” at his asylum

interview and the INS placed Diallo in removal proceedings

and referred his application to an immigration judge. The

government claims we have no jurisdiction to consider the

actions taken by the asylum office. Diallo counters by claim-

No. 03-1876 21

ing that the matter was discussed at the hearing and

became part of the record and therefore part of our review

of the final BIA determination. We need not resolve this

battle because we conclude that even if we had jurisdiction

to consider the action, under Agency regulations, Diallo was

required to demonstrate that his failure to appear—and a

failure to provide an interpreter can indeed constitute a

failure to appear—was the result of exceptional circum-

stances. See 8 C.F.R. § 208.10; 8 C.F.R. § 208.9(g). And

although Diallo appeared with his lawyer at the interview,

he failed to demonstrate affirmatively the existence of any

exceptional circumstances. (R. at 161).

Finally, Diallo claims that the immigration judge’s ag-

gressive 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)(1). 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 vio-

lations.

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 determi-

nation 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 coun-

try. 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 PART, REVERSED AND REMANDED IN PART.

22 No. 03-1876

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—8-26-04