# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Argued February 27, 2019

Decided March 26, 2019

Before

DIANE P. WOOD, Chief Judge

WILLIAM J. BAUER, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

No. 18-2392

LOVERT TCHOUGOUE

Petitioner

,

v

.

WILLIAM P. BARR Attorney General
of the United States, Respondent

. Petition for Review of an Order of the Board of Immigration Appeals.

No. A213-089-410

O R D E R

Lovert Tchougoue, a 22-year-old citizen of Cameroon, petitions for review of the Board of Immigration Appeals’ denial of his application for asylum after he was beaten by police for protesting government policies that have violently divided Francophones and Anglophones. An immigration judge deni ed relief, finding that Tchougoue was not

credible and failed to corroborate his claim of political persecution sufficiently. The NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1No. 18-2392 Page 2

Board assumed that Tchougoue was credible , but affirmed the denial of relief on grounds that he had not established persec ution. Because the Board applied the wrong legal standard to Tchougoue’s claim, we g rant the petition for review and remand the case for further proceedings.

Tchougoue’s asylum claim arises from hi s involvement in protests against the Cameroon government over the dominance of the French language in the Anglophone region of northwest Cameroon. The increasi ngly violent conflict between Anglophones and the Francophone majority began in late 2016 when teachers and lawyers in the Anglophone regions, including Tchougoue’s hometown of Bamenda, went on strike for months to protest their marginalization an d forced assimilation by the Francophone
government. See e.g. , U.S. Department of State, 2018 Human Rights Report: Cameroon 1–2. The government responded by arresting an d killing protesters, and the crackdown spawned a violent, secessionist movement demanding an independent Anglophone

state called Ambazonia. Id . at 1, 3, 9-10. In search of separatists, the government burned homes in the country’s Anglophone regions, and indiscriminately killed civilians, causing hundreds of thousands of Anglop hones to flee from Cameroon’s Englishspeaking northwest and southwest regions. Id . at 15, 22-23; see also U.S. Concerned over Uptick in Violence in Cameroon , U.S. D EPARTMENT OF S TATE (Nov. 6, 2018), https://www.state.gov/r/pa/prs/ps/2018/11/287178.htm.

In 2016, when he was a university stud ent in Bamenda, Tchougoue joined a student protest of the government’s use of French in schools. He was arrested by police
on November 11, 2016, 1 and taken to prison. The police accused him of being a leader of the protests and, for two days, held him in a cell and repeatedly beat, slapped, and kicked him, leaving scars on his body and back. Tchougoue managed to escape and fled to his grandmother’s village ten kilometers away.

For the next six months, Tchougoue hid at his grandmother’s house. But on May 23, 2017, upon venturing to a store, he was pi cked up by another police officer, who, accusing Tchougoue of being a leader of the student protest, arrested him, beat him, slapped him, and forced him into a police car. Again Tchougoue escaped, jumping out of the police car before he arrived at prison . Tchougoue later contacted his mother, who

1 Tchougoue testified at his hearing that police arrested him in 2017, but in his appeal to the Board he corrected himsel f and wrote that he meant to say 2016. For purposes of its decision, the Board assumed “without deciding” that the correction was

true.No. 18-2392 Page 3

told him that police had come to the house looking for him. He then returned to his apartment in Bamenda to collect his thin gs and found his apartment in disarray— presumably the aftermath of a police search.

Tchougoue scooped up his bags and trekked on foot for ten days until he reached Nigeria. He worked there for two mo nths to gather funds, flew to Ecuador, and

then via Mexico entered the United States . At the California border, he applied for

admission to the United States without a visa and was detained. He remains detained at a facility in Chicago.

A month after his entry, the Department of Homeland Security served him with a notice to appear in removal proceedings for his entry without a visa. At a later hearing before the immigration judge, Tchougoue a pplied for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). (Tchougoue now proceeds only on his asylum claim.) The IJ told Tchougoue about the importance of corroborating evidence to support his application, and scheduled another hearing a

month later.

At the next hearing, the IJ denied all of Tchougoue’s applications. The IJ found that Tchougoue’s testimony was neither plausi ble nor believable; that even if he had testified credibly, the alleged harm did not rise to the level of persecution; that he had not sufficiently corroborated his claims; and that any fear of future persecution he had was not objectively reasonable.

Tchougoue appealed to the Board, which upheld the IJ’s decision. Though the Board assumed (without deciding) that Tchougoue had testified credibly, it concluded that his past experiences—albeit “distinctl y unpleasant”—“did not reach the level of ‘persecution.’” In reaching this conclusion , the Board analogized Tchougoue’s situation

to cases in which we held that the record “did not compel [the] conclusion” of persecution. Without corroboration, the Boar d added, Tchougoue could not establish a well-founded fear of persecution.

Tchougoue opens his petition by cha llenging the IJ’s adverse credibility determination on grounds that it relie d upon minor inconsistencies that were reasonably explainable. In particular, he co ntends that the IJ wrongly discredited him for inadvertently misstating the year of his arre st and for not adding more details about his detention. Although we note that the gr ounds for the credibility ruling are thin and
the inconsistencies trivial, we can assume fo r purposes of our review that Tchougoue isNo. 18-2392 Page 4

credible: when he appealed this issue to the Board, the Board assumed—without deciding—that Tchougoue was credible, and we will operate from the same assumption. See Sibanda v. Holder , 778 F.3d 676, 679 (7th Cir. 2015).

Tchougoue asserts that the IJ erred in requiring additional corroborative evidence because the IJ failed to specify wh at evidence he would have liked to have seen and whether the evidence was readily ob tainable or reasonably available. In his oral ruling, the IJ found that Tchougou e “offered no corroborating evidence.” But Tchougoue does not develop this point and, in any case, the IJ may require corroborating evidence under the REAL ID Act, see 8 U.S.C. § 1158(b)(1)(B)(ii), even if the applicant is credible, as long as th at evidence is reasonably available. See Raphael v. Mukasey , 533 F.3d 521, 527 (7th Cir. 2008). Neither the IJ nor Tchougoue discussed whether the evidence was reasonably available (and arguably it was not given Tchougoue’s escape, abrupt flight from Came roon, his instant detention in the U.S., and his prompt immigration hearing). But Tchougoue did not demonstrate that corroborative evidence was reasonably unavailable, as was his burden to do so. Id

. at 529.

Tchougoue’s stronger argument is that the Board applied the wrong legal standard when it relied on our precedent to define what type of conduct constitutes persecution. The Board made this mistake, he says, by improperly analogizing his experiences to those of other petitioners in cases in which we concluded that the harm did not reach the level of persecution:

Assuming the respondent’s credib ility, we conclude that his past experiences in Cameroon, while distin ctly unpleasant, did not reach the level of “persecution.” See Orellana-Arias v. Sessions , 865 F.3d 476, 487 (7th Cir. 2017) (explaining that unde r the Seventh Circuit law, “minor injuries . . ., albeit traumatic, do not rise to the level of persecution,” and collecting cases so holding); see also Mekhtiev v. Holder , 559 F.3d 725, 729–30 (7th Cir. 2009) (finding that one over night detention and beating was not severe enough to constitute persecution); Mema v. Gonzales , 474 F.3d 412, 416–18 (7th Cir. 2007) (holding that abdu ction at gunpoint followed by detention and physical abuse, resulting in petitioner losing consciousness, did not compel conclusion that peti tioner suffered past persecution); Dandan v. Ashcroft , 339 F.3d 567, 573–74 (7th Cir. 2003) (holding that record did not compel conclusion that petitioner suffered persecution based on a single incident where he was detained and deprived of food for three daysNo. 18-2392 Page 5

and “beaten to the extent that his face became ‘swollen,’” because petitioner needed to provide more detail).

He is correct—the Board conflated our deferential standard with its own by improperly relying on our case law to conc lude that Tchougoue’s experiences did not reach the level of past persecution. Our st andard of judicial review is whether the

evidence compels a finding of past persecution wh ile the Board’s administrative review is whether the applicant actually has shown past persecution—a less demanding standard that requires the agency to apply its expert judgment in the first instance.

See Sobaleva v. Holder , 760 F.3d 592, 597–98 (7th Cir. 2014); Sirbu v. Holder , 718 F.3d 655, 658–60 (7th Cir. 2013); Yasinskyy v. Holder , 724 F.3d 983, 989 (7th Cir. 2013). When the agency abdicates this responsibility by tr eating our deferential standard as the substantive standard, it “turns the system upside down” by unfairly ratcheting up the standard and applying a circular logic. Plaza-Ramirez v. Sessions , 908 F.3d 282, 285 n.1 (7th Cir. 2018); Yasinskyy , 724 F.3d at 989. The Board’s “reliance on a simple comparison to our cases disregarded the fact that wh en we apply deferential judicial review, we ‘expect the immigration judge and the Board to exercise their independent judgment and expertise in deciding whether the abuse of an applicant for asylum rose to the level of persecution.’” Sobaleva , 760 F.3d at 597 (quoting Sirbu , 718 F.3d at 658.) The Board’s boilerplate summary—on top of its assumption that Tchougoue testified credibly— reflects no independent judgment or e xpertise. Remand is necessary so that Tchougoue’s evidence of past persecution ca n be evaluated under the proper standard.

Also problematic in the IJ’s and Board’s decisions is that neither gave adequate consideration to the content of Tchougou e’s testimony. Even if Tchougoue cannot establish past persecution (and thereby is in eligible for the presumption that he has a well-founded fear of future persecution), he ca n establish a fear of fu ture persecution if the fear is subjectively genuin e and objectively reasonable. See Diallo v. Ashcroft

, 381 F.3d 687, 699 (7th Cir. 2004). The IJ and the Board found that he faltered on the objective test by not presenting sufficientl y detailed evidence, but this finding ignored Tchougoue’s testimony about the political unre st and his repeated encounters with the police. In his testimony—which, again, th e Board assumed to be credible—Tchougoue said that he was arrested because he join ed a student protest on November 11, 2016 after teachers and lawyers took to the str eets to protest the government’s language policies; that he endured two episodes of po lice beatings because of his involvement in the protests; that the police had tracked down his mother’s home to inquire about him and searched his own apartment; and that he wen t into hiding for half a year out of fear of the police before being apprehended an d beaten again on May 23, 2017. If thisNo. 18-2392 Page 6

testimony is deemed sufficiently persuasive and detailed, it can satisfy his burden of proof, even without corroboration. See Xiang v. Lynch , 845 F.3d 306, 309 (7th Cir. 2017).

Because the Board (1) erroneously applied the wrong legal standard to determine whether Tchougoue experienced persecution and (2) failed to consider all of Tchougoue’s testimony, we grant the petition for review and remand the case to the
Board so that it can evaluate, in the fi rst instance, whether Tchougoue established persecution.