Torres v. Mukasey, 551 F.3d 616 (7th Cir. 2008)

KANNE, Circuit Judge.

Pedro Flores Torres, a native and citizen of Honduras, seeks asylum, withholding of removal, 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 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 application for asylum and his testimony at a series of immigration hearings, and second, Torres's inability to establish the requisite nexus between Torres's mistreatment 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 determination 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 proceedings.

I. History

[...] 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 border. While serving, each of the four older sons endured brutal mistreatment at the hands of his superiors. Three of the four ultimately deserted the navy to escape these abuses [...] 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 [...] 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.

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 superiors — 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."

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.

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.

II. Analysis

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. We must affirm the immigration court's decision if it is supported by "reasonable, substantial, and probative evidence on the record considered as a whole." When, as here, the BIA adopts the reasoning of the IJ, we review the IJ's decision under this deferential standard. 

The IJ rejected all three of Torres's claims — for asylum, withholding of removal, and protection under the Convention 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. When making a credibility determination, an IJ evaluates the applicant's claims "only for internal consistency, detail, and plausibility." The IJ's credibility finding is often paramount "[b]ecause direct authentication or verification of an alien's testimony and/or evidence is typically very difficult and often impossible." In lieu of direct evidence, [a petitioner for asylum's] credible testimony, by itself, is generally sufficient to sustain the alien's burden of proof. If the IJ finds an alien's testimony 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.

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. We will not, however, "defer to credibility determinations drawn from insufficient or incomplete evidence, nor shall we uphold adverse credibility determinations based on speculation or conjecture, rather than on evidence in the record."

In addition, we have recognized that an IJ's improper behavior while conducting an immigration hearing can render his credibility determinations unreliable. 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 discuss 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. In so doing, the IJ may not "demonstrate impatience, hostility, or a predisposition against the applicant's claim." We have overturned an IJ's credibility 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." 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 from the transcripts that direct questioning by the IJ occupied more than half of the hearings. The IJ's impatience with Torres was glaring, even through the emotionless 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 interrupting 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 Torres's counsel asked the IJ to clarify the term, the IJ replied simply, "He would know."

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 [...]

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

A successful asylee must show that he was persecuted because of his race, religion, nationality, membership in a particular social group, or political opinion. Our prior opinions make it clear that we consider family to be a cognizable social group within the meaning of the immigration law [...]

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 persecutor, referenced Torres's family while inflicting harm on Torres [...]

The IJ disregarded these statements and numerous others like them scattered throughout Torres's testimony. Instead, the IJ focused on purported inconsistencies regarding Martinez's involvement in, and motivation for, the mistreatment of Torres. In particular, the IJ questioned (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 recollection 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 punishment 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." Similarly, we will not uphold credibility determinations "`based on speculation or conjecture, rather than on evidence in the record.'"

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." A reading of the 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." He also stated that "an officer who was training me told me directly that I received mistreatment because my last name was Flores Torres." 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 determination.

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 relationship, or lack thereof, with Guadalupe has little or no bearing on this [...]

Third, the IJ speculated that Martinez did not know the history of the Flores Torres family. Without this information, Martinez would have no reason to persecute Torres on account of his membership in that family. In reaching 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 n nothing but speculation and conjecture [...]

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 asylum. Torres described these events in detail during his hearings before the IJ, but he failed to mention them at all in his written application [...]

When, as here, a petitioner for asylum is faced with an adverse credibility finding based on material inconsistencies or omissions, the petitioner may counter with "a convincing explanation of the discrepancies or extrinsic — and credible — corroborating evidence." At many junctures during his testimony, Torres provided explanations for the omissions from his application. Torres stated that he remained afraid of Martinez and that the omitted events had been humiliating. 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.

The IJ chose to disregard these explanations. The IJ, without additional justification, said only that "the respondent could not offer any persuasive reason as to why he had not detailed [these events] in his affidavit." 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 imagination. See Huang, 403 F.3d at 950-51. Although we will generally defer to the weight an IJ gives to a proffered explanation, we will not do so when the IJ's own conduct and flawed analysis serve to make the finding itself wholly unreliable.

III. Conclusion

We conclude that the IJ's credibility determination was not based on "specific, cogent reasons that bear a legitimate nexus to the findings," 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 VACATE the BIA's order for voluntary departure and REMAND for further proceedings in accordance with this opinion. As we have done on prior occasions,  we encourage the BIA to assign a different judge to this case on remand.