Pedro Flores Torres v. Eric Holder, Jr.

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-1614

P EDRO F LORES T ORRES,

Petitioner,

v.

M ICHAEL B. M UKASEY, A TTORNEY G ENERAL

OF THE U NITED S TATES,

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals.

No. A98-520-315

A RGUED S EPTEMBER 8, 2008—D ECIDED D ECEMBER 23, 2008

Before P OSNER, K ANNE, and T INDER, Circuit Judges.

K ANNE, Circuit Judge. Pedro Flores Torres, a native and

citizen of Honduras, seeks asylum, withholding of re-

moval, and relief under the Convention Against Torture.

Torres claims that he was persecuted while a soldier in the

Honduran army because of his membership in a social

group—namely, his family, which included four older

brothers, three of whom were military deserters. Torres

2 No. 08-1614

asserts that he was tortured and abused as punishment

for his brothers’ actions. On May 31, 2006, Immigration

Judge Carlos Cuevas declined Torres’s primary requests

for asylum, withholding of removal, and protection

under the Convention Against Torture, granting instead

his alternative prayer for voluntary departure. The IJ

found that Torres lacked credibility because of, first,

inconsistencies and omissions in Torres’s written ap-

plication for asylum and his testimony at a series of

immigration hearings, and second, Torres’s inability to

establish the requisite nexus between Torres’s mistreat-

ment and his family’s unfavorable reputation in the

Honduran military. The Board of Immigration Appeals

summarily affirmed the IJ’s decision in an order issued

February 15, 2008. We find that the IJ’s credibility determi-

nation was tainted due to the IJ’s improper conduct

during the hearings and that there was not substantial

evidence to support the IJ’s conclusions. We vacate the

decisions of the BIA and IJ and remand for further pro-

ceedings.

I. H ISTORY

Pedro Flores Torres entered the United States without

inspection in October 2003 and submitted a written

application for asylum and withholding of removal one

year later. In December 2004, the Department of Home-

land Security charged Torres with being removable as an

unadmitted alien pursuant to 8 U.S.C. § 1182(a)(6)(A)(i). At

a series of immigration hearings held in April and May

2006, Torres admitted he was removable but renewed his

No. 08-1614 3

requests for asylum and withholding of removal, as well

as relief under the Convention Against Torture. Torres’s

written application, accompanying affidavits, and testi-

mony by Torres and his brother Juan Carlos provide

the following facts.

A. The Flores Torres Family

From 1959 to 1979, Guadalupe Torres gave birth to

eight children in Comayagua, a village in Honduras. Five

of these children were boys. The oldest son, Mario Noe,

was born in 1959. The next three sons—Luis Elias, Gerardo

Isaac, and Juan Carlos—were born in 1962, 1969, and 1977,

respectively. The youngest child, Pedro Alfredo, is the

petitioner in this matter and was born in 1979. The chil-

dren’s father left the family shortly after Pedro’s birth.

Pedro’s four older brothers were conscripted into the

Honduran navy, where each spent at least some time at

the naval base in Amapala, near the El Salvadoran bor-

der. While serving, each of the four older sons

endured brutal mistreatment at the hands of his superi-

ors. Three of the four ultimately deserted the navy

to escape these abuses. Because Pedro’s claims are based

largely on his brothers’ experiences within the Honduran

military, those experiences merit some discussion.

Mario is the only Torres son not considered a military

deserter. Mario served for approximately one year, during

which time his arm was broken and his ear punctured,

resulting in permanent hearing damage. He escaped, only

to be captured and put back into active service. At one

4 No. 08-1614

point, Mario, Luis, and Gerardo were all serving in the

Honduran military at the same time. This prompted the

navy, due in part to heavy lobbying by Gerardo, to

release Mario pursuant to a Honduran law that pro-

hibited any one family from having more than two mem-

bers in the military.

The second son, Luis, suffered two broken arms from

a severe beating with a baton and fled the navy soon

thereafter. Soldiers found him in a hospital and returned

him to duty. After enduring further mistreatment, Luis

escaped again, this time with a broken leg. When the

military found Luis the second time, it determined that

his disabled condition rendered him useless to serve

and designated him a deserter.

The actions of the third son, Gerardo, were particularly

aggravating to the military. In addition to lobbying for

Mario’s discharge, Gerardo refused to commit war crimes,

citing his Christian faith to explain his unwillingness to

kill his innocent countrymen. Gerardo was imprisoned

for fifteen days, deprived of food, and savagely beaten.

As further punishment, his commander made Gerardo

walk through a field of land mines while the commander

lobbed grenades in his direction, one of which tore

away one of Gerardo’s legs and ravaged his back with

shrapnel. His commander left Gerardo to die in the

mine field, but Gerardo’s compatriots helped him

escape alive. Faced with what he felt was a certain death

if he returned to his unit, Gerardo deserted.

Juan Carlos, only two years Pedro’s senior, was con-

scripted into the Honduran navy in 1994 at the age of

No. 08-1614 5

seventeen, one year before he was of legal age to serve.

He was singled out for abuse because of Gerardo’s exploits.

Once, when Juan Carlos fell during a run, a superior

officer slashed his leg with a bayonet, inflicting an injury

that required surgery. Following the operation, doctors

told Juan Carlos that he needed two months to recover;

instead, he was forced back into training after only

fifteen days. His unhealed leg made it impossible for

him to perform, and the premature exercise reopened

his wound. Juan Carlos deserted in 1995.

Today, two of the brothers, Mario and Luis, live secretly

in Honduras, afraid of military retribution for their fam-

ily’s history. Gerardo and Juan Carlos both escaped to

the United States. Gerardo was granted asylum in 1994

and died one year later, at the age of twenty-five, from

brain cancer. Juan Carlos was granted asylum in 1995

and is now a United States citizen. He resides in Elkhart,

Indiana, near two of his sisters, both of whom are

legal permanent residents.

As a result of these disturbing circumstances, repeated

not once but four times, the tale of the Flores Torres

brothers has apparently gained some notoriety within

Honduran military circles: the Flores Torres clan is

known as a family of deserters. Juan Carlos was the

first son punished by the military in retribution for his

brothers’ exploits. His past persecution on account of his

family formed the basis of his successful asylum claim.

As we will discuss below, Pedro, the youngest son and

the last to serve in the military, also was forced to pay

for the perceived offenses of his four brothers.

6 No. 08-1614

B. Pedro Flores Torres’s Tenure in the Honduran Army

Born September 26, 1979, Pedro Alfredo Flores Torres

attended school in Comayagua until age eleven. For the

next eleven years, he painted automobiles for car repair

shops, earning money to help support his mother.

Pedro stated in both his written asylum application

and his testimony before the immigration judge that in

February 2002, two Honduran soldiers left notice at

Guadalupe’s home that Pedro had twenty-four hours to

report for military duty. Although military service is no

longer compulsory in Honduras, Pedro testified that he

felt he “did not have any other option” but to enlist. If he

did not, Pedro believed that he would be found and

beaten, or worse, would simply “disappear.” The next day,

Pedro reported to the Primer Battalon de Artilleria, an

inland army base near the town of Zambrano, where

he became a member of the artillery corps.

According to Pedro’s testimony, upon reporting for

duty he was confronted by his commanding officer,

Colonel Luis Martinez. Pedro testified that Martinez said

to him, “I was waiting. . . . You are the last one in the

family.”

Pedro claimed that he was subjected almost immediately

to physical and mental abuse from his superi-

ors—mistreatment above and beyond anything suffered

by other soldiers. Pedro stated that officers and other

soldiers called him degrading names and violently beat

him. According to his affidavit, Pedro’s fellow soldiers

and a superior officer told Pedro that his mistreatment

was “because of [his] brothers.”

No. 08-1614 7

Pedro mounted two unsuccessful escape attempts

during his first six months of service. The first, which

came approximately five months into Pedro’s tenure,

ended with a savage beating at the hands of military

guards who apprehended Pedro in the act of fleeing. The

second came only a week later and again ended with a

beating from a guard’s baton. Following the second

attempt, Pedro was stripped of his clothing and locked

in solitary confinement, a place Pedro called “the hole.”

In his affidavit, Pedro said the hole was “what hell must

be like.” A darkened room measuring one meter on all

sides, the hole provided no space for its captive to lie

down. There was little ventilation, and the heat was

intense. Because he could not leave, Pedro was forced

to use the hole to relieve himself. For forty days, Pedro

remained trapped, nude, in his own excrement; the

stench was overwhelming. During those forty days,

Pedro was given beans and tortillas once a day, as well

as two small servings of water. When he finally emerged,

Pedro had lost forty pounds, one-third of his body weight.

Pedro discussed the name calling, the beatings, the two

failed escape attempts, and the forty days of solitary

confinement in both his written asylum application and

his testimony. During his testimony before the immigra-

tion judge, however, Pedro discussed several additional

examples of abuse for the first time.

In the first, Colonel Martinez ordered Pedro stripped

nude and placed in a large, water-filled barrel. The water

was high enough that only Pedro’s nose remained above

the surface. Pedro stated that his first time in the water

8 No. 08-1614

barrel occurred one month after he enlisted; the last was

in July 2003, one month before he successfully escaped. On

questioning by the immigration judge, Pedro testified

that he was subjected to the water barrel on approximately

eighty different occasions, and that he was sometimes

held in the barrel for as long as ten hours; other times

he was held overnight. He further testified that fifteen

times medics had to pump his chest when he was pulled

from the water barrel. Martinez told Pedro that the

water barrel was “to pay for the escape of [his] brothers.”

The second relevant chain of events that emerged during

Pedro’s testimony involved mock killings at the hands of

Colonel Martinez. Pedro stated that Martinez would tell

him, “I’m going to kill you,” place a pistol to Pedro’s head,

and pull the trigger. The gun, unbeknownst to Pedro, was

unloaded. Pedro testified that Martinez said this was to

make Pedro “pay for [his] brothers’ desertion.” The first

of “many times” these mock executions occurred was

two to three weeks after Pedro joined the army.

The final example of mistreatment that Pedro discussed

for the first time during his immigration hearings was

Colonel Martinez forcing him to run nude in front of his

unit. According to Pedro, one month into his time with

the army, Martinez forced Pedro to run completely

naked during a training run, with nothing covering him

but a rifle slung across his back and a second rifle that

he carried in his arms. He was even denied footwear.

Pedro testified that Martinez ordered his soldiers to

“[p]ut this man to run until he falls dead.” Pedro also

stated, in testimony that was often jumbled because of

No. 08-1614 9

language difficulties and the IJ’s frequent interruptions,

that Martinez told him, “[Y]ou have to pay for what

your brothers did for their escape because they violated.

They defy the army.” Pedro stated that this occurred

on numerous occasions.

Seventeen months after he joined the Honduran army,

Pedro succeeded in escaping during a military celebration.

After a brief visit with his mother, whom the military

had prevented Pedro from seeing during his time in the

army, Pedro began his journey north to seek refuge

with his family in the United States. He now lives near

his brother and two sisters in Elkhart.

C. Prior Decisions by the Immigration Judge and the Board

of Immigration Appeals

Immigration Judge Cuevas held a series of three hearings

on April 19, April 25, and May 31, 2006. The IJ played an

active role in the hearings, frequently interjecting him-

self into the testimony. At the conclusion of the proceed-

ings, the IJ issued an oral decision denying Pedro’s re-

quests for asylum, withholding of removal, and protection

under the Convention Against Torture. The IJ based

his decision on what he found to be Pedro’s lack of credi-

bility. The IJ granted Pedro’s alternative request for

voluntary departure. The BIA summarily affirmed the IJ’s

decision in a written opinion issued on February 15, 2008.

10 No. 08-1614

II. A NALYSIS

An IJ’s decision to deny a petition for asylum and

withholding of removal is a finding of fact that we

review for substantial evidence. Capric v. Ashcroft, 355

F.3d 1075, 1086 (7th Cir. 2004). We must affirm the immi-

gration court’s decision if it is supported by “reasonable,

substantial, and probative evidence on the record consid-

ered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481

(1992) (internal quotation marks omitted). We will reverse

only if the evidence “ ‘compels [a] contrary conclusion.’ ”

Ciorba v. Ashcroft, 323 F.3d 539, 544 (7th Cir. 2003) (quoting

Bradvica v. INS, 128 F.3d 1009, 1012 (7th Cir. 1997)). When,

as here, the BIA adopts the reasoning of the IJ, we

review the IJ’s decision under this deferential standard.

Ursachi v. INS, 296 F.3d 592, 594 (7th Cir. 2002).

In this case, Torres pursued three alternative paths to

avoid removal from the United States: asylum, withholding

of removal, and protection under the Convention Against

Torture. Below, we first discuss the standards for these

claims. The IJ’s decision in all three of these areas

hinged on his determination that Pedro’s evidence

lacked credibility, a finding that we review in depth in

the final portion of our discussion.

A. Standards for Asylum, Withholding of Removal, and

Relief Under the Convention Against Torture

The IJ first rejected Torres’s petition for asylum. A

petitioner for asylum bears the burden of proving that he

is a “refugee” within the meaning of 8 U.S.C. § 1101(a)(42).

See also 8 C.F.R. § 1208.13(a). Specifically, Torres must

No. 08-1614 11

demonstrate that, because of his race, religion, nationality,

membership in a particular social group, or political

opinion, he either was the victim of past persecution or

maintains a well-founded fear of future persecution.

Oryakhil v. Mukasey, 528 F.3d 993, 998 (7th Cir. 2008); see

also 8 U.S.C. § 1101(a)(42); 8 C.F.R. § 1208.13(b). Even if an

individual satisfies these requirements, he is not guaran-

teed asylum. Final asylum decisions rest in the discre-

tion of the Attorney General or the Secretary of Homeland

Security. Jun Ying Wang v. Gonzales, 445 F.3d 993, 997

(7th Cir. 2006); see also 8 U.S.C. § 1158(b)(1)(A).

The IJ also declined Torres’s second request, which was

for withholding of removal pursuant to 8 U.S.C.

§ 1231(b)(3). To succeed in this claim, Torres must estab-

lish a clear probability of persecution if returned to Hondu-

ras. See Prela v. Ashcroft, 394 F.3d 515, 519 (7th Cir. 2005). In

other words, Torres must show that it is more likely

than not that he would be persecuted upon return to his

native country. See id. As with claims for asylum, the

persecution here must be on account of one of the five

statutorily defined grounds. Id.; see also 8 U.S.C.

§ 1231(b)(3). The “clear probability of persecution” stan-

dard is a higher threshold than that for asylum. Bevc v. INS,

47 F.3d 907, 910 (7th Cir. 1995). Thus, because Torre’s

attempt at asylum failed, his claim for withholding of

removal had to fail as well. See Toptchev v. INS, 295

F.3d 714, 720 (7th Cir. 2002).

Successful applicants for either asylum or withholding

of removal must show that they have been, or will be, the

victim of persecution. We have described “persecution” as

12 No. 08-1614

“punishment or the infliction of harm for political, reli-

gious, or other reasons that this country does not

recognize as legitimate.” De Souza v. INS, 999 F.2d 1156,

1158 (7th Cir. 1993). Acts of persecution must rise above

“mere harassment,” Roman v. INS, 233 F.3d 1027, 1034 (7th

Cir. 2000), and include threats to life or freedom, as well

as non-life threatening violence or physical abuse, Ciorba,

323 F.3d at 545. As examples of persecution, we have

cited “detention, arrest, interrogation, prosecution, im-

prisonment, illegal searches, confiscation of property,

surveillance, beatings, or torture.” Mitev v. INS, 67 F.3d

1325, 1330 (7th Cir. 1995).

As a third and final avenue to avoiding removal, Torres

also requested protection under the Convention Against

Torture. See 8 C.F.R. § 208.16(C). To succeed, Torres

must prove that it is more likely than not that he will be

tortured within the meaning of the Convention if he

returns to Honduras. See Prela, 394 F.3d at 519; see also

8 C.F.R. § 208.16(c)(4). “Torture” is “any act by which

severe pain or suffering, whether physical or mental, is

intentionally inflicted on a person . . . by or at the instiga-

tion of or with the consent or acquiescence of a public

official or other person acting in an official capacity.”

8 C.F.R. § 208.18(a)(1). The IJ in this case declined Torres’s

request for relief under the Convention Against Torture.

B. The IJ’s Adverse Credibility Determination

The IJ rejected all three of Torres’s claims—for asylum,

withholding of removal, and protection under the Con-

No. 08-1614 13

vention Against Torture—solely because the IJ found

that Torres’s evidence lacked credibility.

One of an immigration judge’s primary functions is to

assess the credibility of an applicant’s evidence. Capric, 355

F.3d at 1085. When making a credibility determination, an

IJ evaluates the applicant’s claims “only for internal

consistency, detail, and plausibility.” Id. The IJ’s credibility

finding is often paramount “[b]ecause direct authentica-

tion or verification of an alien’s testimony and/or

evidence is typically very difficult and often impossible.”

Id. In lieu of direct evidence, an alien’s credible testimony,

by itself, is generally sufficient to sustain the alien’s

burden of proof. Lin v. Ashcroft, 385 F.3d 748, 756 (7th Cir.

2004); Uwase v. Ashcroft, 349 F.3d 1039, 1041 (7th Cir. 2003);

see also 8 C.F.R. § 208.13(a). If the IJ finds an alien’s testi-

mony to be incredible, however, then the alien must

provide either a convincing explanation for the noted

discrepancies in his evidence or credible evidence that

corroborates his claims. Capric, 355 F.3d at 1086.

If the IJ’s credibility determination is supported by

“specific, cogent reasons that bear a legitimate nexus to

the finding,” then this court will be highly deferential in

its review of that conclusion. Capric, 355 F.3d at 1086

(internal quotation marks omitted); see also Hysi v.

Gonzales, 411 F.3d 847, 852 (7th Cir. 2005) (“We give great

deference to an IJ’s credibility determinations so long

as they are supported by cogent reasons that bear a legiti-

mate nexus to the finding.” (emphasis added)); Ahmad v.

INS, 163 F.3d 457, 461 (7th Cir. 1999). We will not, however,

“defer to credibility determinations drawn from insuffi-

14 No. 08-1614

cient or incomplete evidence, nor shall we uphold adverse

credibility determinations based on speculation or con-

jecture, rather than on evidence in the record.” Korniejew

v. Ashcroft, 371 F.3d 377, 383 (7th Cir. 2004) (inter-

national quotation marks and citations omitted)).

In addition, we have recognized that an IJ’s improper

behavior while conducting an immigration hearing can

render his credibility determinations unreliable. See, e.g.,

Huang v. Gonzales, 403 F.3d 945, 950-51 (7th Cir. 2005). The

record reveals that the IJ’s conduct had that effect here.

Thus, before beginning our substantive review of the

specific reasons the IJ gave in support of his adverse

credibility determination, we find it necessary to dis-

cuss our disapproval of the IJ’s conduct during Torres’s

hearings.

1. The Immigration Judge’s Conduct During the Hearings

For purposes of developing the record, an immigration

judge may question an applicant for asylum during a

hearing. Hasanaj v. Ashcroft, 385 F.3d 780, 783 (7th Cir.

2004). In so doing, the IJ may not “demonstrate impatience,

hostility, or a predisposition against the applicant’s claim.”

Huang, 403 F.3d at 948. We have overturned an IJ’s cred-

ibility findings when the IJ does more than “ask . . . a few

questions,” but instead “actively interject[s] himself into

the proceedings, far exceed[s] his role of developing the

record, and at times assume[s] an inquisitorial role.”

Id. That is exactly what the IJ did here.

The transcripts of Torres’s immigration hearings are

littered with lengthy discourses by the IJ. In fact, it appears

No. 08-1614 15

from the transcripts that direct questioning by the IJ

occupied more than half of the hearings. The IJ’s impa-

tience with Torres was glaring, even through the emotion-

less pages of the hearing transcript. The IJ grew frustrated

with the language barrier, a problem the IJ exacerbated

by his unwillingness to give Torres the time he needed to

compose his thoughts into meaningful sentences. Instead,

the IJ assumed the role of inquisitor, incessantly inter-

rupting Torres while he tried to assimilate his responses.

The IJ’s questioning was so pervasive that it was often

difficult to determine who was representing the federal

government with more fervor—the IJ or the government’s

attorney.

At times the IJ’s comments crossed the line. During one

particularly troubling exchange concerning the occasions

on which Martinez forced Torres to run nude in front of

his unit, the IJ, noting the heat in Honduras, said, “I guess

my point is that if it was hot outside, you’d rather run

with less clothes, not naked. But you’d rather run with

less clothes because it’s more comfortable.” (R. at 224.)

The IJ seemed to be implying that Colonel Martinez, by

forcing Torres to run nude in extreme heat, was actually

doing him a favor.

At other times during the hearings, the IJ drew wholly

unsubstantiated comparisons between service in the

Honduran and American militaries. In the course of his

questioning, the IJ referred to “boot camp” and “drill

sergeants,” common American military concepts that

were clearly unfamiliar to Torres. At one point, the IJ

referenced a “signal man” in a question to Torres. When

16 No. 08-1614

Torres’s counsel asked the IJ to clarify the term, the IJ

replied simply, “He would know.”

We find the IJ’s conduct in this case analogous to the IJ’s

conduct in Huang, 403 F.3d 945. There, the petitioner, a

Chinese citizen, sought asylum based on her fear of

persecution for her membership in an illegal Catholic

church. Id. at 946. During the petitioner’s immigration

hearing, the IJ aggressively questioned her, interrupted

her, mischaracterized her testimony, and relied upon his

personal knowledge of the Catholic faith in reaching his

decision. Id. at 946, 947, 949-51. We concluded that the

IJ’s excessive role in the questioning of the petitioner,

his improper conduct during the hearing, and his

reliance on personal beliefs rather than information

contained in the record served to “taint” the IJ’s credibility

finding. Id. at 950-51. As such, we found the tainted

credibility finding “unsupported by specific, cogent

reasons that bear a legitimate nexus to the finding” and

remanded the case for further proceedings. Id. at 951

(internal quotation marks omitted).

Although we do not believe, as Torres argues, that the

IJ’s conduct was so egregious as to violate Torres’s due

process rights, we do find that the IJ’s overactive role

during the hearings, his demonstrated impatience, his

improper lines of questioning, and his reliance on

personal knowledge beyond the facts in the record

tainted his credibility findings. This conclusion, by itself,

is sufficient to remand the case. See id. Because the IJ

made additional errors in his analysis, however, we

turn briefly to his substantive findings.

No. 08-1614 17

The IJ based his adverse credibility determination on

three basic grounds: first, alleged inconsistencies sur-

rounding the circumstances attending Torres’s enlistment

in the Honduran army; second, Torres’s purported inabil-

ity “to provide the nexus for the mistreatment”; and third,

a series of three events that Torres omitted from his

written asylum application and discussed for the first

time during his testimony before the IJ. We consider each

of these grounds in turn.

2. The Circumstances Attending Torres’s Enlistment in the

Honduran Army

In his opinion, the IJ focused at length on the circum-

stances surrounding Torres’s decision to join the Honduran

army. The IJ found particularly concerning (1) Torres’s

alleged confusion about whether military service in

Honduras was voluntary or compulsory, (2) apparent

inconsistencies in Torres’s testimony regarding his level

of pre-enlistment knowledge of the mistreatment endured

by his brothers during their military service, and (3)

Torres’s inability to explain why the military, if it was so

intent on punishing the Flores Torres family, waited until

Torres was twenty-two years old—four years older than

the legal age of service—before forcing his enlistment. For

the following reasons, we conclude, first, that Torres’s

motivations for enlisting in the Honduran army are

irrelevant to his claims of past persecution; and second,

that the IJ erred in looking for evidence of Torres’s sub-

jective fear of past persecution.

18 No. 08-1614

First, we find that Torres’s motivations behind his

decision to join the Honduran army are irrelevant to his

asylum application, and, as such, cannot form the basis

for an adverse credibility determination. We have fre-

quently overturned an IJ’s credibility determination if it

is based on immaterial or inconsequential facts. See, e.g.,

Dong v. Gonzales, 421 F.3d 573, 577 (7th Cir. 2005); Georgis

v. Ashcroft, 328 F.3d 962, 968 (7th Cir. 2003); Uwase, 349

F.3d at 1043; see also Korniejew, 371 F.3d at 383-84 (recog-

nizing that a “minor inconsistency” alone was not

enough to support an adverse credibility determination

before finding additional facts to support upholding the

IJ’s finding). What matters to Torres’s claim is whether

he was persecuted on account of his familial ties once

he became a soldier, not why he joined the Honduran

army in the first place. The IJ’s reliance on these facts

was misplaced. There is no logical connection between

Torres’s reasons for enlisting and his claims of mistreat-

ment while he served. Given the controlling questions of

this case, such facts do not constitute “a valid, cogent

reason for a negative credibility finding.” Uwase, 349 F.3d

at 1042; see also Korniejew, 371 F.3d at 387 (“[W]e remind

those evaluating administrative records that adverse

credibility determinations should not be grounded in

trivial details or easily explained discrepancies; as re-

counted above, an adverse credibility determination

must be supported by ‘specific, cogent reasons’ that ‘bear

a legitimate nexus to the finding.’ ” (quoting Ahmad,

163 F.3d at 461)).

Second, to the extent that the IJ considered whether the

circumstances surrounding Torres’s enlistment in the

No. 08-1614 19

Honduran military provided a basis for his subjective

fear of persecution in the past, that analysis was in error.

To establish a successful claim for asylum, an applicant

must show either that he was the victim of past persecu-

tion or that he has a well-founded fear of future persecu-

tion. Oryakhil, 528 F.3d at 998; see also 8 U.S.C. § 1101(a)(42);

8 C.F.R. § 1208.13(b). A fear of future persecution must

be both objectively and subjectively reasonable to be “well-

founded.” Kllokoqi v. Gonzales, 439 F.3d 336, 345 (7th

Cir. 2005); see also 8 C.F.R. § 1208.13(b)(2). A victim of

past persecution need not show any objective or subjec-

tive fear—only that he was in fact persecuted. See Bolante

v. Mukasey, 539 F.3d 790, 794 (7th Cir. 2008) (“Unless a

petitioner establishes past persecution[,] . . . a petitioner

must show that the fear of future persecution is subjec-

tively genuine and objectively reasonable.”). In this case,

Torres seeks to prove that the Honduran military perse-

cuted him in the past; nonetheless, the IJ attempted

to determine whether Torres “subjectively feared any

persecution by surrendering himself to the military.” (R. at

78.) If, as the IJ’s opinion seems to indicate, the IJ was

looking to these facts to establish Torres’s subjective fear

of persecution in the past, that analysis was incorrect.

3. The Nexus for Torres’s Mistreatment as a Precondition to

Credibility

As another basis for his adverse credibility determina-

tion, the IJ stated that “[t]he difficulty with crediting the

respondent’s testimony is his inability to provide the

nexus for the mistreatment.” (R. at 79.) As we discuss

20 No. 08-1614

below, this analysis erected an insurmountable burden

in Torres’s quest for asylum and, as such, was in error.

An applicant for asylum must demonstrate a nexus

between his alleged persecution and one of five protected

grounds. Wang, 445 F.3d at 998; Tamas-Mercea v. Reno, 222

F.3d 417, 425-26 (7th Cir. 2000). A successful asylee must

show that he was persecuted because of his race, religion,

nationality, membership in a particular social group, or

political opinion. Tamas-Mercea, 222 F.3d at 425. Our prior

opinions make it clear that we consider family to be a

cognizable social group within the meaning of the immi-

gration law. Iliev v. INS, 127 F.3d 638, 642 & n.4 (7th Cir.

1997) (discussing this court’s history on this issue). Our

sister circuits share this view. See, e.g., Lopez-Soto v.

Ashcroft, 383 F.3d 228, 235 (4th Cir. 2004); Jie Lin v. Ashcroft,

377 F.3d 1014, 1028 (9th Cir. 2004); Gebremichael v. INS,

10 F.3d 28, 36 (1st Cir. 1993); see also In re Acosta, 19 I. & N.

Dec. 211, 233 (BIA 1985) (holding that a social group

consists of persons sharing “a common, immutable charac-

teristic . . . such as sex, color, or kinship ties . . .”), overruled

on other grounds by In re Mogharrabi, 19 I. & N. Dec. 439,

439 (BIA 1987).

Although an individual seeking asylum must prove

the requisite nexus to his claims of past or future per-

secution before his claim for asylum will be successful,

he need not—in fact, he generally cannot—prove

this nexus as a precondition to credibility. One must be

careful not to confuse the ultimate question—whether

the petitioner qualifies as a “refugee”—with the credibility

analysis, which looks only at consistency, detail, and

No. 08-1614 21

plausibility. Capric, 355 F.3d at 1085 (“A credibility

analysis should not be confused with a burden of proof

analysis . . . .”).

In stating that “[t]he difficulty with crediting the respon-

dent’s testimony is his inability to provide the nexus for

the mistreatment,” the IJ conflated the nexus and credibil-

ity questions.1 This placed Torres in a no-win situation.

Torres attempted to prove the nexus for his mistreat-

ment through his testimony, which the IJ found incredible;

yet before the IJ would credit Torres’s testimony, he

required a nexus for Torres’s mistreatment. Requiring a

nexus for the mistreatment as a precursor for credi-

bility was legal error.

Even assuming, arguendo, that the IJ did not err by

requiring a nexus for Torres’s mistreatment as a prerequi-

site to finding him credible, a proper analysis of the record

shows that Torres clearly did establish such a nexus. The

IJ’s conclusions to the contrary—which we reiterate are

tainted by the IJ’s improper conduct—are without

support in the record, are irrelevant, or are based on the

1

The government argues that the IJ’s nexus finding was

independent of its adverse credibility determination. It con-

tends that the IJ found, first, that Torres’s evidence was in-

credible, and second, that Torres had not established the

requisite nexus for a successful asylum claim. Careful reading

of the IJ’s opinion makes it clear that this was not the case.

According to the opinion, Torres’s inability to provide

the nexus for his mistreatment was yet another reason

the IJ concluded that Torres lacked credibility.

22 No. 08-1614

IJ’s speculation and, as such, do not provide a proper

basis for an adverse credibility determination. See Georgis,

328 F.3d at 968; Korniejew, 371 F.3d at 383.

Torres’s testimony is rife with examples that provide his

family’s history as the nexus for his mistreatment.

Throughout the hearing, Torres noted the numerous

occasions on which Colonel Martinez, his primary persecu-

tor, referenced Torres’s family while inflicting harm on

Torres. In at least one instance when Martinez placed

an unloaded pistol to Torres’s head and pulled the

trigger, Torres testified that Martinez said, “You are going

to pay for your brothers’ desertion. You are going to

pay for his escape because you are the last one that you

we [sic] have.” (R. at 132.) According to Torres’s testimony,

Martinez told Torres that he placed Torres in the

water barrel because “I had to pay for the escape of my

brothers.” (R. at 200.) Torres testified that when Martinez

forced Torres to run nude in front of his unit, Martinez

ordered, “Put this man to run until he falls dead. . . .

Because you have to pay for what your brothers did

for their escape because they violated. They defy the

army.” (R. at 199.) Torres also stated, “I was so afraid that

I was going to stay in [the army] and I was afraid to die

in there. Because . . . Colonel Luis Martinez told me that

I was never going to leave that place. . . . Because I was

going to pay for my brothers’ escape because I was the

last one that remained.” (R. at 136-37.)

The IJ disregarded these statements and numerous

others like them scattered throughout Torres’s testimony.

Instead, the IJ focused on purported inconsistencies

No. 08-1614 23

regarding Martinez’s involvement in, and motivation

for, the mistreatment of Torres. In particular, the IJ ques-

tioned (1) why Martinez, if he played such a pivotal role

in Torres’s mistreatment, was not named in Torres’s

written asylum application; (2) why Martinez would say

he knew Torres’s mother, while Guadalupe had no recol-

lection of Martinez; (3) the plausibility of Torres’s story

about his family’s military reputation in light of the

different branches of military involved, the distance

between the implicated military bases, and the length

of time between the service of Torres’s brothers and his

own; and (4) whether Torres’s mistreatment was punish-

ment for his poor performance and his improper acts,

not for his family’s affronts to the Honduran military.

None of these provides a sound basis for the IJ’s adverse

credibility finding.

This court has stated that “we will not automatically

yield to the IJ’s conclusions when they are drawn from

insufficient or incomplete evidence.” Georgis, 328 F.3d at

968. Similarly, we will not uphold credibility determina-

tions “ ‘based on speculation or conjecture, rather than on

evidence in the record.’ ” Korniejew, 371 F.3d at 383 (quot-

ing Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002)).

Keeping these things in mind, we turn first to

Martinez’s purported absence from Torres’s affidavit.

Other circuits have recognized that the “failure to file an

application form that was as complete as might be

desired cannot, without more, properly serve as the

basis for a finding of a lack of credibility.” Aguilera-Cota v.

INS, 914 F.2d 1375, 1382 (9th Cir. 1990). A reading of the

24 No. 08-1614

affidavit in this case reveals that although it does not

mention Martinez by name, it does reference the role of

Torres’s “supervisors” and “officers” in his mistreatment.

In the affidavit, Torres noted that he was singled out

for mistreatment by his “supervisors.” (R. at 396.) He also

stated that “an officer who was training me told me

directly that I received mistreatment because my last

name was Flores Torres.” (R. at 396-97.) We find this to

be more than ample specificity for the affidavit and in no

way contradictory with Torres’s subsequent testimony.

There is no basis here for an adverse credibility deter-

mination.

Next, we find it irrelevant to Torres’s claim whether

Martinez knew Guadalupe Torres. Again, what matters

is whether Martinez knew of Torres’s brothers and

their history in the Honduran military. Martinez’s rela-

tionship, or lack thereof, with Guadalupe has little or no

bearing on this. Further, we find the two statements—that

Martinez knew Guadalupe but that Guadalupe had

no memory of Martinez—not inconsistent. It is not clear

from the testimony whether Martinez merely knew of

Guadalupe (perhaps because of her status as the mother

of the Flores Torres boys), or whether he claimed to

know her personally. In addition, it is perfectly plausible

that one party to an encounter has memory of the

meeting while the other does not.

Third, the IJ speculated that Martinez did not know the

history of the Flores Torres family. Without this informa-

tion, Martinez would have no reason to persecute Torres

on account of his membership in that family. In reaching

No. 08-1614 25

this conclusion, the IJ found persuasive that Torres served

in a different branch of the military (the Honduran army)

than did his four brothers (all of whom served in the

Honduran navy). He also noted the long distance

between the naval base located in Amapala, where

Torres’s brothers served, and the army base near

Zambrano, which is where Torres was stationed. Finally,

the IJ discussed the length of time between when Mario,

Torres’s oldest brother, served, and when Torres served.

The problem, however, is that the conclusion that

Martinez was unaware of the Flores Torres family’s

reputation within Honduran military circles is wholly

without support in the record. The only evidence is

unequivocal on this point. It shows that Martinez was well-

versed in the exploits of the Flores Torres boys. The IJ’s

attempts to cobble together a different story are based on

nothing but speculation and conjecture.

Finally, Torres does not dispute, and the IJ correctly

noted, that the punishment Torres received following

both of his unsuccessful escape attempts came at the

hands of unknowing soldiers and, hence, was not persecu-

tion on account of his family. What the IJ ignores, however,

is the many other incidents—the water barrel, the mock

executions, the running in the nude—that were done

separate and apart from Torres’s escape attempts. As

discussed above, it is these events, based on Martinez’s

own words, that form the nexus for Torres’s persecution.

The IJ attempts to wrap these abuses in a blanket justifi-

cation: punishment for Torres’s inability “to perform

his exercises and responsibilities as a recruit to the satis-

26 No. 08-1614

faction of his superiors.” (R. at 80.) Again, however,

there is no information in the record to support this

conclusion. The IJ improperly relied on his own assump-

tions about the Honduran military and Torres’s perfor-

mance as a soldier to reach his decision.

4. Omissions from Torres’s Supporting Affidavit

By far the most troubling aspect of Torres’s application

for asylum is that he omitted three separate series of

significant events from his written application for asy-

lum. Torres described these events in detail during

his hearings before the IJ, but he failed to mention them

at all in his written application. The first are the incidents

in which Martinez submerged Torres up to his chin in a

barrel of water for up to ten hours at a time. On examina-

tion by the IJ, Torres revealed that this happened to him

approximately eighty times. (R. at 234.) The seven-page

affidavit that Torres filed in support of his written ap-

plication for asylum, however, is silent about these occur-

rences. The second notable omission from Torres’s

written application is the series of mock executions per-

formed at the hands of Colonel Martinez, in which Marti-

nez would put an unloaded pistol to Torres’s head and

pull the trigger. The third omission is the occasions on

which Martinez forced Torres to run nude in front of his

comrades. Again, the written application and accompany-

ing affidavit make no mention of these events.

For Torres’s petition to succeed, these omitted events

must be accepted as the basis of his claims. Torres’s written

No. 08-1614 27

application generalizes about his mistreatment and

focuses almost exclusively on his time in “the hole.” As we

acknowledged above, however, it appears from both

Torres’s affidavit and his testimony that Torres’s time in

the hole, while deplorable, was punishment for Torres’s

second escape attempt in the span of one week, not for

being a member of the Flores Torres family. As such, this

mistreatment lacks the requisite nexus to one of the

five protected grounds and cannot form the basis of a suc-

cessful asylum claim. See Tamas-Mercea, 222 F.3d at 425-

26. Thus, if Torres is to succeed in his attempt for

asylum, the three instances that were linked to his status

as a Flores Torres brother and that were omitted from

his written application—the water barrel torture, the

mock executions, and the nude running—must serve as

the foundation of his claims.

According to Torres’s own testimony, these omitted

incidents were examples of severe mistreatment. Fifteen

times, Torres stated, medics had to revive him after

pulling him from the water barrel. On multiple occasions

Torres thought he was staring death in the face, only to

hear the click of an empty chamber when Martinez

pulled the trigger on the gun placed against Torres’s

temple. And one can only imagine the humiliation that

must come from being forced to run, without clothes,

alongside one’s friends and comrades-in-arms. These

events happened not once, not twice, but numerous

times. Torres testified, for example, that Martinez sub-

jected him to the water barrel torture on approximately

eighty different occasions.

28 No. 08-1614

Our prior decisions have addressed the significance of

omissions. In Korniejew, 371 F.3d 377, an immigration

judge made an adverse credibility determination after a

woman seeking asylum discussed certain instances of

persecution in her affidavit but failed to mention them

during her hearing. Id. at 381. We concluded that these

were material omissions and upheld the IJ’s decision. Id.

at 384-85. We found several facts decisive in reaching

that conclusion: (1) the omitted incident was the peti-

tioner’s most recent personal encounter with her persecu-

tors; (2) the omitted incident involved physical injury to

the petitioner; (3) the petitioner was held overnight

during the omitted incident; (4) the omitted incident was

important in petitioner’s decision to flee her country;

and (5) the petitioner did not offer a reasonable explana-

tion for her failure to discuss the omitted incident

during her hearing. Id.

We relied on our analysis in Korniejew as support for

our later decision in Shmyhelskyy v. Gonzales, 477 F.3d 474

(7th Cir. 2007), which had facts even more analogous to

those presented in this case. In Shmyhelskyy, as here, the

petitioner provided an additional claim during his

hearing that he did not discuss in his written application,

an omission the immigration judge found critical in

concluding that the petitioner’s testimony was incredi-

ble. Id. at 479. In affirming the IJ’s adverse credibility

finding, we discussed the factors from Korniejew and

focused most of our attention in two areas: first, the

severity of the omitted beating, and second, the peti-

tioner’s inability to provide any explanation for his

failure to allege the beating in his written application. Id.

at 481.

No. 08-1614 29

In light of our analyses in Korniejew and Shmyhelskyy,

we conclude that the three omissions in this case were

significant. These were meaningful events during Torres’s

time in the Honduran military—incidents that strike at

the very heart of Torres’s claims. The mistreatment was

severe. The occurrences were repetitive. These were the

events, among others, that prompted Torres to flee. It only

follows that these events should have been prevalent

throughout not only Torres’s testimony, but his written

application as well. The IJ, notwithstanding his

improper conduct throughout the hearing and his

flawed analysis on several other points, was correct in

using these omissions as one basis for his adverse cred-

ibility determination. Where the IJ once again failed,

however, was in the next stage of the analysis.

When, as here, a petitioner for asylum is faced with

an adverse credibility finding based on material incon-

sistencies or omissions, the petitioner may counter with “a

convincing explanation of the discrepancies or extrinsic—

and credible—corroborating evidence.” Capric, 355 F.3d

at 1086. At many junctures during his testimony, Torres

provided explanations for the omissions from his ap-

plication. Torres stated that he remained afraid of

Martinez and that the omitted events had been humiliat-

ing. He was hesitant to discuss such humiliations with his

attorney, who was nothing more than a stranger at the

time she helped him construct his initial application and

accompanying affidavit. As Torres explained during the

hearings, only after he became more familiar with his

attorney and began to trust her did he come forward

with the additional information.

30 No. 08-1614

The IJ chose to disregard these explanations. The IJ,

without additional justification, said only that “the respon-

dent could not offer any persuasive reason as to why

he had not detailed [these events] in his affidavit.” (R. at

82.) In reviewing this conclusion, we return to our

earlier finding that the IJ’s conduct during the hearing

tainted his analysis. Applying that finding to this

situation, we conclude that the IJ’s opinion that these

explanations were unpersuasive is incurably tainted by

his improper conduct during the hearing and prejudiced

by his continued reliance on facts either immaterial to

Torres’s claims or derived from the ether of the IJ’s imagi-

nation. See Huang, 403 F.3d at 950-51. Although we will

generally defer to the weight an IJ gives to a proffered

explanation, see Georgis, 328 F.3d at 970, we will not do so

when the IJ’s own conduct and flawed analysis serve

to make the finding itself wholly unreliable.

III. C ONCLUSION

We conclude that the IJ’s credibility determination was

not based on “specific, cogent reasons that bear a legiti-

mate nexus to the findings,” Huang, 403 F.3d at 948 (inter-

nal quotation marks omitted), and was therefore in error.

Accordingly, the decision to deny Torres’s petition for

asylum, withholding of removal, and protection under

the Convention Against Torture was not supported by

substantial evidence. We V ACATE the BIA’s order for

voluntary departure and R EMAND for further proceedings

in accordance with this opinion. As we have done on

prior occasions, see, e.g., Huang, 403 F.3d at 951; Lin, 385

No. 08-1614 31

F.3d at 757-58; Georgis, 328 F.3d at 970; Kerciku v. INS, 314

F.3d 913, 919 (7th Cir. 2003), we encourage the BIA to

assign a different judge to this case on remand, cf. Circuit

Rule 36 of the United States Court of Appeals for the

Seventh Circuit.

12-23-08