Toure v. Atty Gen USA

Opinions of the United

2006 Decisions States Court of Appeals

for the Third Circuit

4-5-2006

Toure v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 05-1746

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 05-1746

SEYDOU TOURE

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES

Respondent

Petition for Review of an Order

of the Board of Immigration Appeals

(No. A97-152-778)

Immigration Judge: R.K. Malloy

Submitted Under Third Circuit LAR 34.1(a)

March 9, 2006

Before: ROTH and ALDISERT, Circuit Judges, and

RODRIGUEZ,1 District Judge

(Filed : April 5, 2006)

1

The Honorable Joseph H. Rodriguez, Senior District Judge,

United States District Court for the District of New Jersey,

sitting by designation.

Francois-Ihor Mazur, Esq.

2207 Chestnut Street

Philadelphia, PA 19103

Counsel for Petitioner

Curtis C. Pett, Esq.

United States Department of Justice

Tax Division

P.O. Box 502

Washington, D.C. 20044

Peter D. Keisler, Esq.

Douglas E. Ginsburg, Esq.

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, D.C. 20044

Counsel for Respondent

OPINION

ALDISERT, Circuit Judge

Seydou Toure, a native and citizen of Cote d’Ivoire,

petitions for review of a final order of the Board of Immigration

Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”)

denial of his application for asylum, withholding of removal and

relief under the Convention Against Torture (“CAT”). For the

reasons set forth below, we will grant the petition.

2

I.

A.

The current situation in Cote d’Ivoire was born from the

increasingly divisive politics that arose following the death of its

first president, Felix Houphouet-Boigny. Houphouet-Boigny

was from the southern part of Cote d’Ivoire, which is

religiously, ethnically and linguistically distinct from the North.

The population of the South is predominantly Christian and

animist, and is comprised of various ethnic groups, most

prominently the Baoulé. French is the primary language. By

contrast, the northern part of the country is predominantly

Muslim in religion and Dioula and Senoufo in ethnicity. Dioula

is the primary language.

In the mid-1990s, political parties from the South

popularized the concept of “Ivoirianness.” They seized upon the

perception that northern Ivoirians have closer ethnic, cultural

and linguistic ties with the countries to the North than they do

with southern Cote d’Ivoire. Rassemblement des Republicains,

or Rally of the Republicans (“RDR”), was one of several

opposition parties that emerged to rally against the

discrimination against northerners.

In 2000, tensions escalated when RDR’s leader, Alassane

Ouattara, a Dioula, was stopped from standing in the

presidential elections after doubts were raised about his

nationality. That decision, which was perceived as another

instance of discrimination and human rights abuses against

northerners, infuriated RDR supporters.

On September 19, 2002, a rebellion began against the

government of President Laurent Gbagbo. A group of exiled

military members, calling themselves the Patriotic Movement of

Cote d’Ivoire, took control of towns in central and northern Cote

d’Ivoire. According to the United States Department of State

3

Country Report on Human Rights Practices for 2002 (“State

Department Report”), there was widespread suspicion, fostered

by the government and others, that the RDR was instrumental in

the coup.

Numerous human rights violations are alleged to have

been committed in the suppression of the riots and rebellion.

The State Department Report states that both “[s]ecurity and

rebel forces committed numerous human rights abuses.” (App.

at 156.) A report by Human Rights Watch states that the

Ivoirian government’s response to the rebellion “has not been

restricted to legitimate security measures, but has rather tended,

at minimum, to exacerbate existing divisions in Ivoirian society

and, at worst, to promote or cause human rights abuses . . .. In

many cases government security forces have carried out or

tolerated human rights violations by others . . . against

individuals who are considered sympathetic to the rebellion

simply by their ethnicity or religion.” (App. at 162.) The State

Department Report also observes that there have been “major

divisions within the military based on ethnic, religious, and

political loyalties.” (App. at 165.)

B.

Against this backdrop, we turn to the specific details of

Toure’s application. Toure was born in northern Cote d’Ivoire

in 1957 and is a Muslim of Dioula ethnicity. He joined the

Ivoirian Air Force in 1976. After receiving specialized training

in France in aircraft mechanics, he served as an officer in the

Ivoirian Air Force as an aircraft mechanic from 1979 to October

2002. Toure is married and has five children. Prior to fleeing

the country, he and his family lived in the southern city of

Abidjan, the economic and administrative center of Cote

d’Ivoire. His wife, Aissetou Toure, is also from northern Cote

d’Ivoire. She became active in the RDR in 1999, and later

became president of the Codody Section of the Rally of

Republican Women, a branch of the RDR. On at least one

4

occasion, she held an RDR meeting at their home. Although

Petitioner is a supporter of the RDR, he did not join because

members of the Ivoirian armed forces are prohibited from

engaging in political activities.

According to Toure’s testimony, three distinct acts of

persecution were perpetrated against him and his family.2 First,

in February 1998, after being discovered reading an opposition

newspaper while at work, he spent 15 days in a military prison,

after which he returned to military duties. He testified that he

was not beaten and that such detentions were a common form of

punishment when an officer violates a military rule.

Second, on January 9, 2001, Toure was arrested and

imprisoned along with 14 other men, 12 of whom were

northerners, on suspicion of abetting a failed coup d’etat. The

imprisonment lasted two days, during which time he was

severely beaten and sustained injuries, one of which left a scar

on his forehead. During the beating, he was allegedly told

something to the effect of: “You northerners, you have

economic power; and not satisfied with that, your brother

Ouattara wants to be president of the Republic; that never!”

The final and most serious incident occurred on either

October 20 or 21, 2002, five days after Toure was accused by

his superiors of giving information to the opposition press

regarding the arrival by air of arms and soldiers. Toure’s home

was ransacked while he was attending a neighborhood security

meeting. When he returned home from the meeting, he found

his family’s possessions thrown onto the street outside of the

house, and his children were crying and his wife was nowhere

2

Toure also testified that, following an RDR meeting in

January 2001, the government arrested his wife and took her to

prison for one night, where she was beaten. He does not

emphasize this incident in his brief, but we will consider it as

part of the factual background.

5

to be seen. When asked where their mother was, the children

informed him that men with guns wearing military uniforms had

taken her away.

His wife was released the next day, and appeared to have

been beaten. She told him that the men had asked her about his

whereabouts and accused both her and him of divulging the

aviation activities of the government to the press. She also told

him that they referred to her as a northerner and told her that

northerners would never have political power in Cote d’Ivoire.

(App. at 111-113.)

After this final incident, on October 23, 2002, Toure and

his family fled their home. Toure hid in his hometown of

Beoumi, while the rest of family sought refuge with Toure’s

sister in another part of Abidjan. While in hiding, Toure

contacted a hotline that had been established by the RDR for

people to report incidents involving violence by the government.

Subsequently, an article was published in an opposition

newspaper documenting the ransacking of Toure’s home. In the

article, Toure expressed fear for his life. After several weeks in

hiding, Toure fled Cote d’Ivoire and came to the United States.

His family remains in hiding in Cote d’Ivoire.

C.

Toure entered the United States through New York on

March 11, 2003. After being served with a notice to appear

charging him with removability pursuant to 8 U.S.C. §

1227(a)(1)(B), Toure conceded removability and applied for

asylum, withholding of removal and relief under CAT.

On September 18, 2003, at the close of testimony, the IJ

issued an oral decision denying Toure’s application for asylum,

withholding of removal and relief under CAT. The IJ based her

conclusion that Toure is not eligible for asylum on several

findings. First, she found that the incidents described above

6

were not sufficiently severe to constitute persecution.

Specifically, she found that the 1998 and 2001 detentions did

not rise to the level of persecution because the 1998 detention

was relatively comfortable and the 2001 detention, though

harsh, was of short duration. She emphasized that Toure

traveled abroad after both those events, including a 10-month

sabbatical to the United States in August 2001, and that his

failure to apply for asylum at that time indicated that he did not

fear for his safety. With respect to the ransacking of his house,

the IJ conceded that it was the “most serious offense,” but she

found that “it is not clear exactly what happened to his house,

the respondent did not present any evidence that his house was

ransacked.” (App. at 66.) The IJ observed that Toure is an

“educated man” and that he should have been able to obtain

evidence that his house had been destroyed.

Second, the IJ found that even if Toure was persecuted,

he failed to show that it was on account of statutorily-

enumerated grounds. The IJ concluded that Toure could not

have been targeted for his political opinion because he did not

belong to a political party. Moreover, because the rebels were

from all parts of Cote d’Ivoire and the rebel leader was not from

Toure’s tribe, the IJ found that Toure was not targeted for being

either a northerner or a Dioula. Although the IJ found credible

Toure’s testimony that his wife was active in the RDR, she

implicitly rejected this as a basis for the detentions and

ransacking.

Third, at least with respect to the ransacking of the home,

the IJ questioned whether the persecution was by the

government or forces that the government could control.

Because Toure is relatively wealthy, the IJ speculated that it

may have just been an ordinary burglary: “It is possible that

some individuals came to his home and ransacked his home

because of the valuables contained therein, not because of any

political opinion imputed to the respondent or his wife.” (App.

at 66-67.)

7

Fourth, the IJ found that Toure’s reason for not wanting

to return to Cote d’Ivoire is that he will be imprisoned and

court-martialed for deserting the military. The IJ concluded that

because prosecution under generally applicable laws does not

constitute persecution, Toure’s claim necessarily fails.

Finally, although the IJ did not make an explicit adverse

credibility finding, she found it “inconceivable” that Toure

would be allowed to maintain his position in the military and

travel both nationally and internationally if he were suspected of

being an opposition sympathizer.

The IJ then concluded that Toure’s failure to prove his

eligibility for asylum necessarily meant that he failed to satisfy

the more onerous burdens of proving entitlement to withholding

of removal or relief under CAT. The BIA affirmed the IJ’s

decision without opinion.

II.

We have jurisdiction over this petition under 8 U.S.C.

§1252, which grants federal courts of appeals jurisdiction to

review final orders of the BIA. When the BIA summarily

affirms the IJ’s decision, the decision we review is that of the IJ.

Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003) (en banc).

We review an IJ’s factual findings, including his or her

determination of whether an alien was subject to persecution or

has a well-founded fear of future persecution, under the

substantial evidence standard. See, e.g., Shardar v. Ashcroft,

382 F.3d 318, 323 (3d Cir. 2004).

Although substantial evidence review is deferential –

under which we may reverse only if “‘[a] reasonable adjudicator

would be compelled to conclude to the contrary,’” Shardar, 382

F.3d at 323 (quoting 8 U.S.C. § 1252(b)(4)(B)) – “that deference

is expressly conditioned on support in the record, and deference

is not due where findings and conclusions are based on

8

inferences or presumptions that are not reasonably grounded in

the record.” Dia, 353 F.3d at 249; see also Caushi v. Att’y Gen.,

436 F.3d 220, 226 (3d Cir. 2006) (same). An IJ must support

her factual determinations with “specific, cogent” reasons such

that her conclusions “flow in a reasoned way from the evidence

of record and are [not] arbitrary and conjectural in nature.” Dia,

353 F.3d at 250. Failure to do so “does not pass muster under

the substantial evidence rubric.” Id. at 254 (discussing Mulanga

v. Ashcroft, 349 F.3d 123 (3d Cir. 2003)).

III.

The legal precepts underlying Toure’s claim are well

established. The Attorney General has the discretionary power

to grant asylum to an alien who qualifies as a refugee within the

meaning of 8 U.S.C. § 1101(a)(42)(A). See 8 U.S.C. §

1158(b)(1). A refugee is “any person who is outside any

country of such person’s nationality . . . and who is unable or

unwilling to return to, and is unable or unwilling to avail himself

or herself of the protection of, that country because of

persecution or a well-founded fear of persecution on account of

race, religion, nationality, membership in a particular social

group, or political opinion[.]” 8 U.S.C. § 1101(a)(42)(A).

To establish eligibility for asylum based on past

persecution, as Toure seeks to do here, an asylum applicant must

show: “(1) one or more incidents rising to the level of

persecution; (2) that is ‘on account of’ one of the

statutorily-protected grounds; and (3) is committed either by the

government or by forces that the government is either unable or

unwilling to control.” Mulanga, 349 F.3d at 132 (citing Gao v.

Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002)). A showing of past

persecution gives rise to a rebuttable presumption of a

well-founded fear of future persecution. See 8 C.F.R. §

208.13(b)(1); Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d

Cir. 2003). “That presumption can be rebutted if the INS

establishes by a preponderance of the evidence that the applicant

9

could reasonably avoid persecution by relocating to another part

of his or her country or that conditions in the applicant’s country

have changed so as to make his or her fear no longer

reasonable.” Mulanga, 349 F.3d at 132 (citations omitted).

Asylum applications also constitute simultaneous

applications for mandatory withholding of removal. See 8

C.F.R. § 208.3(b). To qualify for withholding of removal, an

applicant must show a “clear probability” that his or her life or

freedom would be threatened if he or she is deported. Lin v.

INS, 238 F.3d 239, 244 (3d Cir. 2001) (citing Chang, 119 F.3d

at 1066). “The question under that standard is whether it is

more likely than not that the alien would be subject to

persecution.” INS v. Stevic, 467 U.S. 407, 424 (1984). The

standard for eligibility for withholding of removal is more

exacting than the asylum standard. See Chang, 119 F.3d at

1066. “Thus, if an alien fails to establish the well-founded fear

of persecution required for a grant of asylum, he or she will, by

definition, have failed to establish the clear probability of

persecution” standard for withholding of removal. Zubeda, 333

F.3d at 469-470 (citation omitted).

To obtain relief under the Convention Against Torture,

an applicant must establish “that it is more likely than not that

he or she would be tortured if removed to the proposed country

of removal.” Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir.

2002) (quoting 8 C.F.R. § 208.16(c)(2)). Once an applicant

establishes a claim for relief under CAT, he or she may not be

removed to the country where the torture occurred or would

occur. Zubeda, 333 F.3d at 472.

The burden of establishing eligibility for asylum,

withholding of removal, and relief under CAT is on the

applicant. 8 C.F.R. § 208.13(a).

IV.

10

With these precepts in mind, we turn to the petition for

review. We will begin by analyzing whether substantial

evidence supports the IJ’s finding that Toure did not establish

the three elements necessary to show past persecution. For the

purposes of this analysis, we will assume that Toure’s testimony

is credible. Accordingly, if he is unable to establish those three

elements, his claim fails regardless of his credibility. If he does

establish those three elements, we must next examine whether

the Government rebutted the presumption of a well-founded fear

of future persecution that arises from a showing of past

persecution. Finally, if it has not, we must review the IJ’s

findings that (1) Toure did not sufficiently corroborate the home

invasion testimony, and (2) his testimony is implausible, which

we will treat as an adverse credibility finding.

A.

To establish eligibility for asylum based on past

persecution, Toure must first show that he suffered “one or more

incidents rising to the level of persecution.” See Mulanga, 349

F.3d at 132. In Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993), we

defined persecution as “threats to life, confinement, torture, and

economic restrictions so severe that they constitute a threat to

life or freedom.” Id. at 1240. “Fatin made clear that

‘persecution’ denotes ‘severe’ conduct and that, ‘persecution

does not encompass all treatment that our society regards as

unfair, unjust, or even unlawful or unconstitutional. If

persecution were defined that expansively, a significant

percentage of the world’s population would qualify for asylum

in this country . . ..’” Li v. Att’y Gen., 400 F.3d 157, 167 (3d

Cir. 2005) (quoting Fatin, 12 F.3d at 1240).

Because the IJ concluded that the circumstances

surrounding the ransacking of Toure’s home were “unclear,” she

explicitly addressed only the severity of the 1998 and 2001

detentions. Similarly, the Government’s brief focuses almost

exclusively on those two incidents, arguing that they were not

11

sufficiently severe to be considered persecution under this

Court’s precedents. Both the IJ’s oral decision and the

Government’s brief emphasize that Toure traveled abroad

several times following these detentions and voluntarily returned

to Cote d’Ivoire, undercutting his claim that these detentions

were severe enough to cause him to fear persecution in Cote

d’Ivoire. See Karouni v. Gonzales, 399 F.3d 1163, 1175 (9th

Cir. 2005) (“In certain cases, a petitioner’s return to the country

in which he or she fears persecution may undercut the

petitioner’s claim that his or her fear is objectively

well-founded.”).

Although “[t]his Court has not yet drawn a precise line

concerning where a simple beating ends and persecution

begins,” Voci v. Gonzales, 409 F.3d 607, 615 (3d Cir. 2005), we

are willing to assume, arguendo, that substantial evidence

supports the IJ’s conclusion that the 1998 and 2001 detentions,

standing alone, do not constitute persecution. See Dandan v.

Ashcroft, 339 F.3d 567, 573-574 (7th Cir. 2003) (holding that a

single three-day detention, in which respondent was deprived of

food and suffered a swollen face as a result of beatings from

police, did not compel reversal of BIA’s decision that

respondent had not suffered persecution). This, however, does

not end our inquiry. As the IJ conceded, the most egregious act

of persecution was the invasion of the home and the abduction

of Toure’s wife. We do not agree that the facts surrounding this

incident were “unclear.” Toure’s testimony was perfectly

coherent. Moreover, this incident was not followed by any

international travel and subsequent returns to Cote d’Ivoire.

Indeed, this incident was the proverbial straw that broke the

camel’s back; it caused Toure and his family to go into hiding.

Furthermore, we do not consider the home invasion in

vacuo; we weigh it in conjunction with the prior incidents. As

Toure testified, although he felt fear as a result of the prior

incidents, he returned to Cote d’Ivoire because he held out hope

that the unrest would dissipate. When the harassment continued

12

and escalated, it was then that Toure fled. Unlike the frog in the

parable who calmly remained in the pot of boiling water until it

was too late, Toure was well aware that his environment was

becoming more dangerous. We therefore do not think that

Toure’s return to Cote d’Ivoire and his hope for improved

conditions require us to insulate these prior incidents from the

ransacking and abduction.

Considering the incidents in toto, we conclude that, if

true, they would rise to the level of persecution. In re O-Z &

I-Z, 22 I. & N. Dec. 23, 26, 1998 WL 177674, 1198 BIA LEXIS

12, *6-7 (April 2, 1998) (holding that three beatings, including

one resulting in a knee injury, and a home break-in, constituted

persecution under the INA when considered “[i]n the

aggregate”); see also Voci, 409 F.3d at 614-615 (holding that

multiple beatings, one of which resulted in hospitalization, and

threats against family members rose to the level of persecution).

These were not “isolated incidents that [did] not result in serious

injury.” See Voci, 409 F.3d at 615 (collecting cases involving

isolated mistreatment causing no severe injuries). The 2001

detention lasted two full days and Toure was repeatedly beaten.

Then, in October 2002, his home was invaded by uniformed

men, his children terrorized, his possessions destroyed and

thrown into the street, and his wife abducted and beaten. These

acts were not merely “unjust,” “unfair” or “unlawful,” Li, 400

F.3d at 167; they were overt acts of persecution.

Other than contending that the circumstances surrounding

the home invasion were unclear, the Government does not

dispute this conclusion. Significantly, it does not refer us to any

cases where we concluded that similar acts would not constitute

persecution. Its only argument is that Toure’s claim of past

persecution is undercut by his wife’s continued presence in Cote

d’Ivoire without incident. See Hakeem v. INS, 273 F.3d 812,

816 (9th Cir. 2001) (“An applicant’s claim of persecution upon

return is weakened, even undercut, when similarly-situated

family members continue to live in the country without incident

13

. . ..”); Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005)

(agreeing with Hakeem that family members’ continued

presence can undermine the reasonableness of a petitioner’s fear

of future persecution).

We initially note that this argument relates more to the

issue of the reasonableness of Toure’s fear of future persecution

than to the question of whether he suffered past persecution.

Generally, evidence of similarly-situated family members’

continued presence in the country where the persecution

allegedly occurred is more probative of whether the petitioner

will suffer persecution if he were returned to his home country

than whether he suffered persecution in the past.

In any event, we do not agree that this principle has any

application where, as here, a petitioner testifies that the

similarly-situated family members are in hiding. In such

circumstances, a lack of continued persecution merely reflects

the family members’ ability to avoid detection, not the

Government’s desire, or lack thereof, to further persecute them.3

If anything, Toure’s testimony that his family remains in hiding

substantiates his assertion that he was persecuted. Accordingly,

we conclude that substantial evidence does not support the IJ’s

finding that the three incidents complained of by Toure were not

sufficiently severe to constitute persecution.

B.

3

Of course, if hiding means relocation to another part of the

county, this may be relevant to showing that petitioner could

reasonably avoid persecution by relocating within the country.

See 8 C.F.R. § 208.13(b)(1)(i)(B) (stating that the Government

can rebut the presumption of a well-founded fear arising from a

showing of past persecution by proving that “[t]he applicant

could avoid future persecution by relocating to another part of

the applicant’s country of nationality”). The IJ, however, never

made any finding on this issue.

14

To prevail, Toure must next show that the persecution

was “‘on account of’ one of the statutorily-protected grounds”

set forth at 8 U.S.C. § 1101(a)(42)(A). See Mulanga, 349 F.3d

at 132. Toure contends that he was persecuted on account of his

ethnicity, religion, political opinion and imputed political

opinion. The IJ found that Toure could not show that any harm

he may have suffered was on account of his political opinion

because he did not belong to any political party, and that he

could not show that it was on account of his ethnicity because

the opposition leader was not Dioula and members of the RDR

come from all over the country.4

These findings are not supported by the facts in the

record or the canons of logic. First, there is no requirement that

a petitioner be a card-carrying member of a political party to be

considered persecuted on account of political opinion. It is

indisputable that individuals are able to, and do, hold political

opinions even if they do not belong to a political party, and that

the INA protects individuals who do not belong to a political

party to the same degree as those who do. Indeed, a person may

be persecuted on account of imputed political opinion even if he

or she does not actually subscribe to them. Balasubramanrim v.

INS, 143 F.3d 157, 165 n.10 (3d Cir. 1998).

The IJ’s second conclusion – that Cote d’Ivoire’s civil

conflict is not regional or ethnic in nature – is contrary to every

official account of Cote d’Ivoire’s civil war, as well as Toure’s

testimony. Although some southerners belong to the RDR and

4

According to the IJ: “The Court, therefore, could not find

that the respondent was targeted for his political opinions

because he did not belong to a political party nor was he being

targeted because of the region of the country from which he

hails because the rebel group consists of members of individuals

[sic] from all parts of the Ivory Coast nor was he being targeted

for his ethnic group because the rebel leader is a member of

Senufo [sic] tribe.” (App. at 64.)

15

other opposition groups, every one of these confirmed sources

indicates that the conflict is primarily regional and ethnic in

nature. Indeed, the conflict chiefly stems from perceived

discrimination against northerners by southern political parties.

The IJ’s emphasis on the Senoufo ethnicity of the RDR

leader is particularly misplaced. The Senoufos and the Dioulas

are the two major ethnic groups in the North, and both oppose

what they perceive as discrimination against northerners. That

the RDR has a Senoufo leader is therefore unsurprising, and

does not rationally support the IJ’s conclusion that the conflict

is not ethnically or regionally based.

Nothing in Toure’s testimony supports the IJ’s

conclusion that he was not persecuted on account of some

combination of his ethnicity, religion, political opinion and

imputed political opinion. Toure testified that he was initially

imprisoned for reading opposition newspapers at work,

indicating that the government was aware of his opposition

sympathies. Further, his wife was a prominent RDR member,

held an RDR meeting in their home on at least one occasion, and

was arrested for RDR-related activities. It therefore seems

highly probable that Toure’s wife’s political activities would be

attributed to him.

Even more significant, the persecutors’ statements clearly

indicate that the persecutions were politically and ethnically

motivated. During the January 2001 detention and beating, in

which 13 of the 15 men detained were northerners, Toure was

told something to the effect of: “You northerners, you have

economic power; and not satisfied with that, your brother

Ouattara wants to be president of the Republic; that never!” He

was also questioned regarding his wife’s political activities.

Furthermore, after the home invasion, his wife told him that the

men made statements about northerners and political power. In

light of this testimony, there is no logical or evidentiary basis for

the IJ’s conclusion that Toure was not persecuted on account of

16

one of the statutorily-enumerated grounds. See Shardar, 382

F.3d at 324 (“The evidence indicates these beatings were

politically motivated – the perpetrators yelling, ‘Ershad time is

over. Now is, is [sic] BNP time.’”).

C.

Third, to show eligibility for asylum based on past

persecution, Toure must establish that the acts of persecution

were “committed either by the government or by forces that the

government is either unable or unwilling to control.” Mulanga,

349 F.3d at 132. The IJ concluded that petitioner failed to

establish the requisite governmental nexus, at least with respect

to the home invasion. She reasoned that because Toure was

relatively wealthy, the October 2002 incident could have been

a common burglary.

This finding is speculative and lacks support in the

record. Toure testified that his children told him that the home

invasion was perpetrated by men in military uniforms with guns.

They abducted his wife, questioned her about Toure’s

whereabouts and made statements about “northerners.” There

is simply no basis for concluding that the ransacking was

perpetrated by common thieves.

The Government contends that “[a]lthough petitioner

testified that he had heard that the act was perpetrated by

‘people with uniform, military uniform and guns,’ that does not

establish that it was committed by Ivoirian soldiers . . . The State

Department Report on Human Rights Practices states that

criminals in the Ivory Coast perpetrate crimes while wearing

fatigues and impersonating the country’s security forces.” (Br.

at 20.) We cannot accept the proposition that because some

criminals pose as military personnel, the wearing of military

uniforms is insufficient to prove that the home invasion was

perpetrated by the Ivoirian government. In resorting to this

argument, the Government commits what logicians describe as

17

the “converse fallacy of accident.” What it does is to anoint

isolated incidents with the chrism of generality, and create a

general rule from an exceptional circumstance. The fallacy lies

in labeling the exception – “the accident” – as the general rule

itself; hence the name, “converse fallacy of accident.”

Moreover, even if we were to accept the Government’s

fallacious argument that the wearing of military uniforms is

insufficient in itself to establish the requisite governmental

nexus, neither the IJ nor the Government has explained why

common criminals would abduct Toure’s wife, ask her about his

whereabouts and make comments about northerners.

Accordingly, we conclude that the IJ’s finding that the home

invasion was not perpetrated by the government is not supported

by substantial evidence.

D.

Having concluded that the IJ’s finding that Toure did not

establish the three Mulanga factors is not supported by

substantial evidence, we now turn to whether the Government

rebutted the presumption of a well-founded fear of future

persecution that accompanies a showing of past persecution.

The Government argues that even if Toure was subject to past

persecution, his reason for not wanting to return to Cote d’Ivoire

is that he will be imprisoned and court-martialed for deserting

the military. The Government argues, and the IJ agreed, that

desertion is a criminal act and that prosecution in conformity

with generally applicable laws is not the same as persecution.

We initially observe that this argument appears to be

based on an assumption that there has been a “fundamental

change in circumstances,” 8 C.F.R. § 208.13(b)(1)(i), and that

Toure no longer reasonably fears any other form of persecution.

The Government, however, did not present any evidence of

changed circumstances at the hearing, and the IJ did not make

any findings as to changed circumstances. Although Toure did

18

testify that he feared being court-martialed and imprisoned, he

never testified that this was the only harm that he feared he

would suffer if he were returned to Cote d’Ivoire. It has

therefore never been established that the only risk Toure faces

should he be returned to Cote d’Ivoire is the prospect of

prosecution by the military, rather than persecution by the civil

government.

Even if we were to assume that the only risk Toure faces

upon return to Cote d’Ivoire is the prospect of lawful

prosecution, the Government’s argument would still fail.

Although we have stated that, “[a]s a general matter . . . fear of

prosecution for violations of ‘fairly administered laws’ does not

itself qualify one as a ‘refugee’ or make one eligible for

withholding of deportation,” Shardar, 382 F.3d at 323, this rule

does not apply where, as here, a petitioner must necessarily

break a law to escape persecution.5 For example, if an alien

faced with ongoing persecution flees his country in violation of

laws that prohibit emigration without permission, punishment

for violating those laws would merely be an extension of the

past persecution. It is generally no answer to say that, upon

return, the alien only faces the risk of prosecution.6 Here, Toure

5

We do agree with the IJ insofar as she concluded that,

absent a showing of past persecution that forced Toure to desert

the military, prosecution for desertion would not qualify as

persecution. See Chang v. INS, 119 F.3d 1055, 1065 (3d Cir.

1997) (holding prosecution pursuant to generally applicable

laws is generally not persecution unless it targets individuals on

the basis of one of the five statutorily-enumerated factors).

From our examination of the record, however, Toure did not

make this argument; his asylum claim is based solely on a

showing of past persecution.

6

The strongest argument, not raised by the Government here,

is that if Toure is punished on his return it will be on account of

criminal wrongdoing rather than on account of his political

19

testified that he left his position in the military because his

family was in grave danger of being harmed by government

authorities. See State Department Report (noting that members

of the security forces committed more than 200 extrajudicial

killings and reporting the existence of death squads and the

discovery of mass graves). If his testimony is believed, then

prosecution and imprisonment for desertion would constitute

persecution under these circumstances.

IV.

Having determined that the IJ’s conclusion that Toure

failed to establish past persecution is not supported by

substantial evidence if Toure’s testimony is believed, and that

the Government has not rebutted the presumption of a well-

founded fear of future persecution, we must now turn to two

additional deficiencies cited by the IJ. First, the IJ complained

that Toure had not produced photographs or other

documentation to corroborate his testimony regarding the

opinion or ethnicity. We agree with the Ninth Circuit, however,

that the Government’s prosecution would at least be partially

motivated by Toure’s ethnicity and imputed political opinion.

See Nuru v. Gonzales, 404 F.3d 1207, 1227-1228 (9th Cir.

2005) (holding that the mere fact that soldier in the Eritrean

military, in fleeing the country in order to avoid continued

persecution for his political opinions, may have committed a

criminal act of desertion, for which he could lawfully be

punished, did not preclude him from showing a well-founded

fear of future persecution based upon his political opinion;

prosecution would be motivated in part by statutorily-

enumerated grounds). We find it highly improbable that Toure

would be prosecuted for desertion if he actively supported the

Ivoirian government and was forced by rebel forces, rather than

the Ivoirian government, to flee the country. See Chang, 119

F.3d at 1065 (holding that China’s motive in prosecuting

defector was “at least in part ‘on account of’” his political

objections).

20

October 2002 home invasion. Second, the IJ appears to have

made an implicit adverse credibility finding, stating that it is

implausible that Toure would be permitted to maintain his

government employment and to travel internationally if the

government at the same time sought to harm him. As we

recently made clear in Chen v. Gonzales, corroboration and

credibility, although intuitively related, are distinct concepts that

should be analyzed independently. 434 F.3d 212, 221 (3d Cir.

2005).

A.

Corroboration is not necessarily required to establish

eligibility for asylum, and relief may be granted solely on the

credible testimony of the applicant. 8 C.F.R. §§ 208.13(a),

208.16(b). In asylum and withholding of removal cases,

however, the BIA has adopted rules which require corroboration

in instances where it is reasonable to expect such proof from a

witness and there is no satisfactory explanation for its absence.

In re S-M-J-, 21 I. & N. Dec. 722, Interim Decision 3303, 1997

WL 80984 (BIA 1997). We adopted these rules as our own in

Abdulai v. Ashcroft, 239 F.3d 542, 551-552 (3d Cir. 2001), and

formulated a three-part inquiry: (1) an identification of facts for

which it is reasonable to expect corroboration; (2) the presence

or absence of such corroboration in the record; and (3) the

adequacy of applicant’s explanation for its absence. Id. at 554.

We observed in Abdulai, without expressing agreement, that the

BIA has included in this category “evidence of an applicant’s

place of birth, media accounts of large demonstrations, evidence

of a publicly held office, or documentation of medical

treatment,” as well as “letters from family members remaining

in the applicant’s home country.” See id. (citations omitted).

We have repeatedly held that the BIA’s (or, as here, IJ’s)

failure to engage in the three-part inquiry described above

requires that the BIA’s findings regarding corroboration be

vacated and remanded. See Abdulai, 239 F.3d at 555 (“Because

the BIA’s failure of explanation makes it impossible for us to

review its rationale, we grant Abdulai’s petition for review,

21

vacate the Board’s order, and remand the matter to it for further

proceedings consistent with this opinion.”); Voci, 409 F.3d at

617 (vacating and remanding where the IJ merely complained

that Voci had not produced documentation or medical records

to corroborate his claims of having been hospitalized after being

beaten by the Albanian police, and neither she nor the BIA

engaged in the three-part inquiry); Mulanga, 349 F.3d at 136

(reversing and remanding where the IJ did not alert petitioner

that the absence of corroboration would be fatal to the

application and did not give petitioner the opportunity to explain

the absence).

Against this background, we will vacate the decision and

remand for further analysis.7 The IJ did not engage in the three-

7

We note that Toure did present corroboration of the home

invasion in the form of an article from an opposition newspaper.

The article shows a picture of items recovered from the home

and quotes Toure discussing what had happened. It is unclear

whether the IJ excluded this evidence or merely disregarded it.

The Government objected to its introduction under 8 C.F.R. §

287.6, which requires the authentication of “official records.”

The IJ appears to have erroneously sustained this objection. In

her oral decision, however, the IJ does mention the article, but

then goes on to discount it because of a letter from the United

States Embassy in Cote d’Ivoire stating that the article appeared

to be from a newspaper in Boukae, which is majority RDR

territory, and therefore potentially “extremely biased.” After

discussing the Embassy letter, the IJ never mentioned the article

again. Indeed, she specifically stated that Toure “did not present

any evidence that his house was ransacked.” (App. at 66.)

Although we agree with the Government that the article is not

conclusive proof of the ransacking because it is based largely on

statements by Toure, we nonetheless consider it to be an

important piece of evidence. At the very least, it supports one

of two conclusions: (1) that Toure’s house was ransacked and he

honestly believes that it was done by military forces, or (2) that

Toure had the foresight to plant a fake story in a newspaper

22

part inquiry described above. Although the IJ identified the

corroborative evidence that she expected and why she expected

it, she never gave Toure the opportunity to provide an

explanation for its absence or to seek supporting evidence from

his relatives in Cote d’Ivoire. It was not until the oral decision

that the IJ indicated that she expected such evidence.

Accordingly, Toure was not provided with notice and an

opportunity to present an explanation. See Mulanga, 349 F.3d

at 136; see also Senathirajah v. INS, 157 F.3d 210, 221 (3d Cir.

1998) (“The procedures for requesting asylum and withholding

of deportation are not a search for a justification to deport.

Justice requires that an applicant for asylum be given a

meaningful opportunity to establish his or her claim.”).

We also have doubts about the reasonableness of the IJ’s

demand for corroboration. As we observed in Senathirajah v.

INS:

It is obvious that one who escapes persecution in

his or her own land will rarely be in a position to

bring documentary evidence or other kinds of

corroboration to support a subsequent claim for

asylum. It is equally obvious that one who flees

torture at home will rarely have the foresight or

means to do so in a manner that will enhance the

chance of prevailing in a subsequent court battle

in a foreign land. Common sense establishes that

it is escape and flight, not litigation and

corroboration, that is foremost in the mind of an

alien who comes to these shores fleeing detention,

torture and persecution.

before he fled to the United States. See Aguilera-Cota v. INS,

914 F.2d 1375, 1382-1383 (9th Cir. 1990) (concluding that a

newspaper article reporting an alleged incident of persecution

offered in support of oral testimony is sufficient documentary

evidence of such an incident).

23

157 F.3d at 215-16.

Here, The IJ focused solely on Toure’s sophistication and

education without addressing the circumstances surrounding his

departure. The IJ did not even acknowledge that it may be

unreasonable to expect Toure to take pictures of his home in the

midst of flight, or that he may have not known that he would

later seek asylum and need to provide evidence. We are

particularly troubled by a portion of the IJ’s oral decision where

she states that “[d]espite [the October 2002 home invasion] the

wife continued her political activities and she held another

meeting or participated in another meeting, and the police

dispersed the meeting even though she had been warned not to

hold additional meetings.” (App. at 63.) This statement is

devoid of any support in the record. The Toures fled their home

and went into hiding on October 23, 2002, two or three days

after the home invasion. (App. at 115.) There was no testimony

that Toure’s wife ever attended any meetings after the home

invasion.

In light of the IJ’s failure to engage in the required In re

S-M-J-/Abdulai corroboration analysis, to permit Toure to

explain the absence of corroborating evidence, and to accurately

represent the facts surrounding the home invasion, we will

vacate and remand. We acknowledge that our scope of review

of corroboration determinations was recently altered by the

REAL ID Act of 2005, which provides that “[no] court shall

reverse a determination made by the trier of fact with respect to

the availability of corroborating evidence . . . unless the court

finds . . . that a reasonable trier of fact is compelled to conclude

that such corroborating evidence is unavailable.” § 101(e),

Pub.L. No. 109-13, 119 Stat. 231, 305, codified at 8 U.S.C. §

1252(b)(4)(D); see also Chen, 434 F.3d at 218. This provision

was effective upon passage of the REAL ID Act on May 11,

2005, and applies to any case “in which the final administrative

removal order is or was issued before, on, or after such date.” Id.

§ 101(h)(3), 119 Stat. at 305-306.

We do not believe that the REAL ID Act changes our

24

disposition of this case. We do not interpret 8 U.S.C. §

1252(b)(4)(D) to alter our rules that (1) an IJ has a duty to

develop an applicant’s testimony, especially regarding an issue

that she may find dispositive, see In re S-M-J-, 21 I. & N. Dec.

at 723-726 (“Although the burden of proof in establishing a

claim is on the applicant, the Service and the Immigration Judge

have a role in introducing evidence into the record.”), and (2) as

a logical predicate to appellate review, the BIA must adequately

explain the reasons for its decisions, Abdulai, 239 F.3d at 555

(“[T]he availability of judicial review (which is specifically

provided in the INA) necessarily contemplates something for us

to review.”). See Singh v. Ashcroft, 2006 WL 197159 at *5 (3d

Cir. Jan. 26, 2006) (unpublished) (remanding for failing to

explain a corroboration determination in a post-REAL ID Act

case). Indeed, it is impossible for us to determine whether “a

reasonable trier of fact [would be] compelled to conclude that

such corroborating evidence is unavailable,” 8 U.S.C. §

1252(b)(4)(D), unless a petitioner is given the opportunity to

testify as to its availability.8 Accordingly, we will vacate and

remand for a new corroboration determination.

8

We also note that it is doubtful that the provisions of 8

U.S.C. § 1252(b)(4)(D) even apply here. The use of the word

“is” in § 1252(b)(4)(D) indicates that this provision only applies

when the corroborating evidence demanded is presently

available, not when a petitioner failed to document something in

the past. Here, the IJ demanded photographic evidence of the

ransacking. If no such pictures were taken, then photographic

evidence would not be presently available because, presumably,

the home has been cleaned up or passed on to new owners.

Section 1252(b)(4)(D) would therefore not apply. See Hor v.

Gonzales, 421 F.3d 497, 500-501 (7th Cir. 2005) (holding that

the IJ’s demand that Hor provide copies of documents he had

filed in court in Algeria was improper because there was no

reason to doubt that Hor did not possess such copies and that the

court cannot presume that such copies are as readily available in

disordered nations as in the United States).

25

B.

Adverse credibility determinations are reviewed under

the substantial evidence standard. Gao, 299 F.3d at 272. “We

look at an adverse credibility determination to ensure that it was

appropriately based on inconsistent statements, contradictory

evidence, and inherently improbable testimony . . . in view of

the background evidence on country conditions.” Dia, 353 F.3d

at 249 (internal citation and quotation marks omitted).

Here, the IJ did not make an explicit adverse credibility

finding. She also did not find that Toure made any inconsistent

statements or submitted contradictory evidence. She did,

however, state that “it is inconceivable that a person who is able

to maintain his employment with the military, a branch of the

government, would be someone that the government wanted to

harm.” (App. at 64.) Moreover, she repeatedly referenced

Toure’s employment and his international travel for the

government as a reason to doubt his testimony.

Mere doubts about the plausibility of a petitioner’s

testimony are an insufficient basis for denial of an application.

If the BIA denies an asylum application solely because it finds

the applicant not credible, it generally must clearly and

explicitly state that it has made an adverse credibility finding

and that it bases its denial on that finding. We have several

times affirmed the rule that where an IJ or the BIA fails to make

an explicit credibility finding, we will proceed as if the

applicant’s testimony were credible.9 See Lusingo v. Gonzales,

420 F.3d 193, 197 n.5 (3d Cir. 2005); Li, 400 F.3d at 163-164;

9

We note that Congress codified this rule in the REAL ID

Act of 2005. The relevant provision states that “if no adverse

credibility determination is explicitly made, the applicant or

witness shall have a rebuttable presumption of credibility on

appeal.” 8 U.S.C. § 1158(b)(1)(B)(iii). Because this provision

applies only to asylum applications filed after May 11, 2005, it

cannot apply to Toure’s application.

26

Kayembe v. Ashcroft, 334 F.3d 231, 235 (3d Cir. 2003).

Significantly, the Government does not contend that the IJ made

an adverse credibility finding here.

Even if we were to treat the IJ’s doubts regarding the

plausibility of Toure’s testimony as an adverse credibility

finding, that conclusion would not be supported by substantial

evidence. As we made clear in Dia, “[w]here an IJ bases an

adverse credibility determination in part on ‘implausibility,’ as

the IJ did here, such a conclusion will be properly grounded in

the record only if it is made against the background of the

general country conditions.” Id. Here, there is no basis in the

record for the IJ’s incredulity. Indeed, contrary to the IJ’s

apparent assumption that the Ivoirian government is run in a

top-down fashion, the State Department Report states that

“[t]here were major divisions within the military based on

ethnic, religious, and political loyalties.” (App. at 156.) We do

not agree that it is implausible that Toure could be persecuted by

some government factions and nonetheless maintain his

employment with the military.

Our view is reinforced by Toure’s testimony that many

people in the military were suspected of supporting the RDR.

For example, 14 other men from the military were detained,

interrogated and beaten in the January 2001 incident. Cote

d’Ivoire would not be the first country to hunt through its ranks

for subversives without actually firing every person it suspected.

That the government chose not to fire every suspected dissident

is especially understandable when those suspected, like Toure,

are integral employees and do not regularly work with classified

information. (See Toure testimony, app. at 57 (explaining that

he believes he was not fired because he was one of only 10

specialists and because the government had no actual proof that

he belonged to the opposition party).) Moreover, it is unknown

whether Toure would have maintained his position after the

October 2002 home invasion. This was the most severe act of

persecution, indicating either that the government was relatively

certain that Toure was actively supporting the opposition or that

it was reducing its tolerance for those even suspected of having

27

RDR ties.

In sum, the record is barren of support for the IJ’s

conclusion that Toure’s testimony is implausible. Assuming

that the IJ made an adverse credibility finding – and this is only

an assumption – such a factual conclusion would be based on

nothing more than speculation and conjecture. Accordingly, we

will vacate this finding.

V.

The IJ here found fault in virtually every aspect of

Toure’s application. Upon review of the record, we conclude

that none of the IJ’s findings adverse to Toure are supported by

substantial evidence. An IJ must do more than simply list off all

the doubts he or she may have about a petitioner’s application

in the belief that at least one of them will be sufficient to support

the decision. Although an IJ may support his or her decision

with alternate findings, and is in many cases encouraged to do

so, at least one of the findings must be sufficiently well-

developed and grounded in the record to sustain the decision.

Here, the IJ made six findings that could be considered

dispositive of Toure’s application. Some are simply speculative

or insufficiently developed; others defy the canons of logic. See

Dia, 353 F.3d at 250 (“[W]e find that the IJ’s conclusions do not

flow in a reasoned way from the evidence of record and are, at

times, arbitrary and conjectural in nature. Repeatedly, we are

left wondering how the IJ reached the conclusions she has

drawn.”).

***

For the reasons detailed above, we will grant the petition

for review, vacate the BIA’s decision and remand for further

proceedings consistent with this opinion.10

10

Because many of the same errors infected the IJ’s

determination that Toure did not qualify for withholding of

28

removal or protection under CAT, we will also vacate and

remand with respect to those claims.

29