In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-3320

VISSINTO K. AYI,

Petitioner,

v.

ALBERTO R. GONZALES,

Respondent.

____________

Petition for Review of an Order of the

Board of Immigration Appeals.

No. A95-220-244

____________

ARGUED MARCH 29, 2006—DECIDED AUGUST 21, 2006

____________

Before BAUER, KANNE, and SYKES Circuit Judges.

BAUER, Circuit Judge. Vissinto Kouassi Ayi applied

for asylum, contending that he had been persecuted in Togo

for his extensive political activities on behalf of the opposition movement. Ayi is a native of Togo and was an active

member of both the Togolese League for Human Rights and

the Union des Forces du Changement. Both of these

organizations are established political and human rights

groups opposed to the ruling government. After Ayi had

endured two incidents of extended captivity and torture, he

learned that a summons had been issued for his arrest.

Because he feared for his life, he arranged for his family to

go into hiding and he fled the country with the help of his

cousin. He entered the United States legally on December
2 No. 05-3320

10, 2000. Ayi applied for asylum on November 26, 2001.

Because the Immigration Judge’s adverse credibility finding

is speculative and not based on substantial evidence, we

grant Ayi’s petition for review.

I. Background

Ayi was born in Togo and is a member of the Mina ethnic

tribe. He was an engineer, a well-respected businessman,

and a member of academia. From early 1991 through the

fall of 1993, Ayi worked on various political activities in

opposition to the dictatorial regime of President Gnassingbe

Eyadema. Ayi wrote articles that were published in opposition newspapers and he joined the Togolese League for

Human Rights (“LTDH”), a well-known human rights

group. Ayi also traveled throughout Togo to educate others

about democracy and human rights.

As a result of his political activities, Ayi was arrested by

Togolese security forces on September 11, 1993. He was

detained for 15 days and during this detention, he was

interrogated, beaten, deprived of food, subjected to electrical

shocks, and was forced to kneel on broken palm nuts

(which, Ayi explained, is like kneeling on broken glass) in

the hot sun for hours, which caused an infection in his

knees and resulted in permanent scarring. Although Ayi

was eventually released, he was warned by his captors

not to report his detention to the press. He was hospitalized

for five days after the detention due to the injuries he

sustained while in captivity.

After such a traumatic experience, Ayi was not openly

political again until 1998. In 1998, he joined the Union

des Forces du Changement (“UFC”), which was also an

opposition organization that raised awareness and educated

people about democracy in Togo. Ayi became active and

went door-to-door campaigning on behalf of the UFC’s

presidential candidate. On March 27, 1999, Ayi was again
No. 05-3320 3

arrested and detained. Togolese security forces shoved

Ayi in a car at gunpoint and took him to an undisclosed

location for two days. During his detention, Ayi was

interrogated about his UFC activities, deprived of food

and water, and forced into a cesspool of mud and dead

animals. When Ayi tried to escape, guards stomped on his

hands, causing permanent scarring. He was also forced to

bathe in a red liquid that burned his skin and eyes. The

guards threatened to kill him repeatedly before his release and warned that he would be harmed if he reported

any part of the incident to the press.

Ayi continued his political activities using different means

at the Center for Technological and Professional Training

(“CNPP”) by encouraging and recruiting co-workers to join

an independent union, the Confederation of Syndicole

Travailers du Togo, rather than the government controlled

union. He also wrote articles in opposition to Eyadema’s

regime. Specifically, Ayi authored two articles, both published in 2000, one in Le Parole, and a second in Le Combat

du People. In 2000, the director of the CNPP and the

nephew of President Eyadema, Mr. Kadaring, confronted

Ayi about his work for opposition political parties. Ayi had

appeared on television denouncing someone and the next

day he drafted an article that he submitted to be printed.

Somehow, Kadaring received the handwritten article and

confronted Ayi about it, asking whose handwriting it was on

the article. Kadaring told Ayi that the handwritten article

made it clear to him that Ayi had written the articles about

Eyadema and his family. Ayi of course denied the charges.

On May 24, 2000, Lt. Colonel Takougnadi, the general

manager of the police and Kadaring’s cousin, called Ayi and

said that it appeared Ayi had not “learned” anything from

his previous detentions. Lt. Colonel Takougnadi told Ayi to

“stop making problems.”

In November 2000, vandals broke into Ayi’s office at

CNPP on two separate occasions. On November 8, 2000, his
4 No. 05-3320

car was vandalized and set on fire. After the second breakin, Ayi’s cousin, Asheni, told him that a summons had been

issued for Ayi’s arrest. Ayi sought to leave the country

because he feared for his life. With the assistance of Asheni,

who was the commander of Togo’s airport security, Ayi was

able to avoid security problems at the airport and fly to the

United States on December 9, 2000. Ayi’s wife continued to

receive serious threats. Given the nature of these threats,

Ayi arranged for his wife to go into hiding with their

children near the Benin border. Two days after they had

gone, the Ayis’ home was searched and many of their

personal possessions were confiscated.

Ayi believes that if he were to return to Togo, he would be

automatically arrested and imprisoned for his opposition to

Eyadema and his family. (Since Ayi left, Eyadema’s son,

Faure Gnassingbé, has taken over as President of Togo).

Ayi’s family tells him that he is still in danger and that

government forces have been looking for him. Ayi’s brother,

Virgil Kouassi Ayi, went to Benin to visit Vissinto Ayi’s wife

and children. Virgil was arrested at the border control

because the officers though that he was Vissinto Kouassi

Ayi. Virgil was held for 15 hours before the border control

finally believed that he was Vissinto’s brother.

Ayi filed for asylum on November 26, 2001, which is

within the one-year statutory deadline required by 8 C.F.R.

§ 1158(a)(2)(B). Following an agency interview, Immigration

and Naturalization Service (“INS”) rejected Ayi’s asylum

application. The INS then referred Ayi’s application to an

immigration court, together with a notice to appear that

charged Ayi with unlawfully remaining in the United States

after his visa had expired. Ayi opposed his removal under

the previously filed asylum application and sought withholding of removal, relief under the Convention Against

Torture, and alternatively, voluntary departure. He appeared before the IJ for a merits hearing on his asylum

application on March 23, 2004. The merits hearing was
No. 05-3320 5

continued until September 27, 2004 and Ayi again attempted to present testimony and documents in support of

his case. On November 1, 2004, the IJ issued a written

ruling denying all requested relief. The IJ concluded that

Ayi was not credible because there were inconsistencies

about Ayi’s political involvement that the IJ believed

undermined his claim. Ayi appealed the IJ’s decision and

the Board of Immigration Appeals adopted and affirmed the

IJ’s ruling on July 13, 2005. This appeal timely followed.

II. Analysis

We focus on the IJ’s credibility finding since the remaining issues on appeal depend on this adverse ruling. When

the BIA does not issue an opinion, but rather, as it does

here, summarily affirms and adopts the IJ’s opinion, we

review the IJ’s decision as the final agency determination.

Georgis v. Ashcroft, 328 F.3d 962, 966-67 (7th Cir. 2003).

Since Ayi filed his asylum application prior to passage of

the REAL ID Act, Pub. L. No. 109-13, 119 Stat. 231, that

statute does not affect the credibility analysis in this case.

Diallo v. Gonzales, 439 F.3d 764, 766 n.1 (7th Cir. 2006).

We will affirm an adverse credibility determination only

where it is “supported by specific cogent reasons that bear

a legitimate nexus to the finding.” Uwase v. Ashcroft, 349

F.3d 1039, 1041 (7th Cir. 2003). While we give great

deference to the IJ’s credibility determination, “adverse

credibility determinations should not be grounded in trivial

details or easily explained discrepancies” because such

bases lack a legitimate nexus to the finding. Korniejew v.

Ashcroft, 371 F.3d 377, 387 (7th Cir. 2004) (citation omitted).

The IJ concluded that Ayi’s testimony was unconvincing as to his 1993 detention. Ayi explained that he was

targeted in 1993 for writing an article critical of President

Eyadema and for his political activities. The IJ was critical
6 No. 05-3320

of Ayi’s testimony and wanted Ayi to provide a clear and

convincing explanation for how his persecutors knew he

authored articles critical of President Eyadema’s government. Yet, our precedent understands that Ayi is not

capable, nor is expected, to testify to the knowledge of other

persons, particularly when called to testify about

the knowledge of his oppressors. Gontcharova v. Ashcroft,

384 F.3d 873, 877-78 (7th Cir. 2004) (denial of asylum

overturned where decision was partly based on absence

of documents not reasonably available to petitioner and

described as “corroboration from the persecutor.”) For an IJ

to deny an asylum claim for lack of corroboration and

demand such evidence from the applicant, the IJ “must first

make an express credibility finding.” Diallo, 439 F.3d at

765-66 (citation omitted). The IJ must also “explain why it

is reasonable to expect corroboration and explain why the

applicant’s reason for not supplying corroboration is inadequate.” Id.; see also Gontcharova, 384 F.3d at 877.

The IJ improperly expected Ayi to explain how his

persecutors knew he was the one who had written the

article critical of Eyadema’s government. His persecutors

may or may not have known that Ayi was the ghostwriter

of the opposition articles, but their targeting of him may

have been the result of his education and outreach efforts

on behalf of the LTDH. Ayi testified that he was persecuted

in 1993 for political activities that included traveling throughout Togo to educate others about democracy and

human rights, which singled him out as an opposition

political activist. Despite the fact that Ayi offered thorough

and consistent testimony that in June 1993 he had written

an article opposing the government, and that he was unable

to provide a copy of the article because the police seized all

of the opposition papers and the publisher is no longer in

business, the IJ questioned the veracity of Ayi’s testimony.

Ayi, however, provided corroborating evidence in the form

of a letter from Lucien Messan, the director of the publica-
No. 05-3320 7

tion itself. For reasons unclear to us, the IJ discredited the

letter from Messan, where he stated that Ayi wrote opposition articles for his publication. Messan’s letter also gave

the pen name that Ayi used, “Rodrigue,” which corresponds

with the author of the articles that Ayi submitted in his

application. Without basis in law, the IJ determined that

Mr. Messan’s letter should have provided the exact dates

and titles of Ayi’s articles in order to establish that Ayi had

written them. Ayi also offered the affidavit of Marcel

Adjalla, the former Executive Secretary of the LTDH, which

stated that Ayi wrote for various independent newspapers

and that he was an active member of the LTDH. Given the

seizure of the articles and the subsequent closing of the

publication, Ayi’s testimony and explanations are not

incredible and, actually, appear to be the types of “easily

explained discrepancies” that should not be the basis for an

IJ’s adverse credibility finding. Korniejew, 371 F.3d at 387.

The IJ next doubted Ayi’s belief that he would be persecuted if he was forced to return to Togo. Noting that Ayi

took a business trip to the United States in 1998, the IJ

questioned why Ayi did not apply for asylum then if

he suffered such terrible persecution in 1993. Ayi’s

uncontroverted testimony is that his 1993 detention and the

torture he endured during it scared him to the point that he

stopped his political activities for five years. When Ayi was

asked why he did not apply for asylum when he was in the

United States in 1998, Ayi explained that at the time of his

business trip “he did not feel openly harassed.” The IJ

disregarded, without explanation, the fact that Ayi had

ceased his political activities after his detention in 1993.

Discrediting Ayi’s testimony for speculative reasons, the IJ

concluded that if Ayi’s torture was as terrible as he claimed,

he would have applied for asylum in 1998 regardless of how

much time had passed since Ayi was openly political and

targeted.

What the IJ fails to understand is that Ayi’s hiatus from

political activity—and thus from persecution—does not
8 No. 05-3320

diminish his credibility. Avoiding persecution for even an

extended period of time is not relevant to a credibility

determination. Hor v. Gonzales, 421 F.3d 497, 499 (7th Cir.

2005) (vacating credibility determination based on IJ’s own

suspicion regarding length of time between dangerous

encounters with persecutors). See also Dong v. Gonzales,

421 F.3d 573, 578 (7th Cir. 2005) (“It is not relevant to

[applicant’s] credibility that she avoided persecution during

the four years she remained in China.”).

Moreover, the IJ failed to mention the fact that Ayi’s

second detention came after the business trip to the United

States. Ayi became politically active again in 1998 and

was detained and tortured on March 27, 1999. The second detention subjected Ayi to horrific torture. Significantly, Ayi was submerged in a cesspool of mud and dead

animals and when he tried to escape, the guards stomped

on his hands, which caused permanent scarring. He ultimately fled Togo when he was notified that a summons had

been issued for his arrest in November of 2000. The

IJ needed to view Ayi’s entire history of political activity as

a seamless story, not as finite periods of time that were

mutually exclusive of each other. As the Board of Immigration Appeals has explained, “[t]estimony is not a discrete,

self-contained unit of evidence examined and weighed

without context; it is a part of the body of evidence which is

intertwined and considered in its totality.” Lin v. Gonzales,

446 F.3d 395, 402 (2d Cir. 2006) (quoting In re S-M-J-, 21

I & N Dec. 722, 729 (BIA 1997)).

The IJ also discredited Ayi’s testimony about his employment at a state-run educational institution. He concluded

that Ayi had not produced evidence proving that university officials were responsible for breaking into his office on

several occasions and eventually vandalizing and setting

fire to his car. The IJ also held that Ayi had not produced

evidence proving that university officials were aware of his

political activities, including whether the officials knew he
No. 05-3320 9

had written articles in opposition newspapers. He also

wondered how Ayi was able to keep his job if his employers

were really targeting him for his political activities.

The IJ’s findings regarding Ayi’s job amount to conjecture

and speculation rather than conclusions that are grounded

in the record. The IJ’s conclusions about Ayi’s employer

illustrate this point. Ayi offered consistent and detailed

testimony regarding his political activities at work, and the

threats he received from the director of the CNPP as well as

others in the government.

Specifically, Ayi testified that he was confronted and

threatened about his political activities by Mr. Kadaring,

the CNPP director and nephew of President Eyadema.

Kadaring asked Ayi if he had written the opposition articles

and Ayi denied authoring them because he feared for his

safety. In addition, Lt. Colonel Takougnadi, the general

manager of the police and Mr. Kadaring’s cousin, called Ayi

and told him that it seemed that Ayi had not “learned”

anything from his previous detentions. Despite this testimony, the IJ questioned how Ayi’s employers knew that he

was involved in the opposition, stating that, “[t]here is no

evidence to suggest that the director suspected that the

Respondent wrote the articles against Eyadema because the

Respondent denied writing them to the director.” This

statement is breathtaking in its contradiction with the

record. Given the threats that Ayi received from the director

and the general manager of the police about authoring

opposition articles and political activity, it is considerably

clear that Ayi was suspected as a political activist and

writer. Additionally, the IJ claimed that if Ayi’s superiors

truly wanted to punish him, surely he would have been

fired. Yet, Ayi explained that the CNPP could not run the

school without him because he had specialized training and

education. The IJ dismissed this explanation, stating that

Ayi’s testimony is undermined by the fact that after Ayi fled

Togo, he was replaced by someone that the CNPP had sent
10 No. 05-3320

to be trained in Germany to gain the same set of skills as

Ayi. While Ayi was replaced, we fail to see how the IJ

disregarded the fact that in order to replace Ayi, the CNPP

needed to send someone to Germany for specialized training. This fact in the record demonstrates that Ayi’s skill was

hard to come by. Essentially, it seems that the IJ’s credibility assessments are the kind we cannot uphold because they

are “unmoored from the record, [and are] based on nothing

but the IJ’s personal speculation or conjecture.” Tabaku v.

Gonzales, 425 F.3d 417, 421 (7th Cir. 2005).

In his findings, the IJ also discredited Ayi’s testimony

as to how he fled Togo. The IJ wondered how Ayi was able

to leave Togo unimpeded if there was a summons for his

arrest. The IJ placed significant weight on a letter Ayi had

received from his cousin, Asheni, warning him to leave

immediately but asking Ayi not to contact him. During his

testimony Ayi explained that his cousin was able to help

him through security at the airport. Ayi stated, “An[ ]

Airport in Togo cannot be compared to the airport in the

United States. My cousin is responsible for the security

in the airport, everyone knows him.” At oral argument, the

government conceded that Asheni’s letter could have meant

any number of things, including that Asheni would help Ayi

but that Ayi should not contact him.

The IJ’s conclusions regarding Ayi’s departure are mere

speculation and conjecture, which does not support an

adverse credibility finding given the record in this case.

Chen v. Gonzales, 420 F.3d 707, 710 (7th Cir. 2005). We

have consistently explained to the Immigration Court that

while their credibility determinations are due deference,

they must be “supported by reasonable, substantial, and

probative evidence on the record considered on a whole.”

INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). Considering Ayi’s cousin was the head of security at the airport,

Ayi’s explanation for his departure is reasonable and is
No. 05-3320 11

not contradicted by probative evidence in the record

considered as a whole.

Finally, the IJ decided that a “paper disturbance,” as

described by the Forensic Document Laboratory Report, on

Ayi’s UFC membership card constituted a forged document.

The IJ concluded that the “paper disturbance” on the card,

which showed a difference between the type style in the

name “Kouassi,” and the type style of the rest of the card,

meant that the membership card was a counterfeit. The IJ

therefore decided that Ayi’s testimony was not “credible in

the face of a forged document because the UFC membership

card relates to a material element of his asylum claim.”

Yet, Ayi has explained that the “paper disturbance”

(which, notably, the Forensic Document Laboratory Report labeled as a “paper disturbance” not a forgery) on the

card was the result of his middle name, Kouassi, added to

the membership card after it was initially issued to Ayi.

Similar to the surname “Smith,” or, even “Bauer,” in the

United States, Ayi explained that his surname is very

common in Togo, which is why he wanted his middle

name added to the membership card. Further, Ayi submitted a letter from the Vice President of the UFC, Emmanuel Bob-Akitani, that certified Ayi as a member.

In Uwase v. Ashcroft, we held that a similar conclusion

about a document was equally unfounded. 349 F.3d at 1042.

Uwase did not explain the presence of a rubber stamp near

the signature line of a letter that told the applicant she

would be killed, and thus the IJ had found that her entire

story of persecution was incredible. In vacating the IJ’s

order of removal, we stated that “[t]he IJ’s speculation

regarding the significance of the stamp, unsupported in the

records, does not form a valid, cogent reason for a negative

credibility finding.” Id.

Similarly here, the IJ’s determination that the UFC card

was a forgery based on what the Forensic Document
12 No. 05-3320

Laboratory Report deemed only to be a “paper disturbance”

is a speculative leap. Moreover, the difference in typeface on

the card indicates a lack of technology available to the UFC:

“The notion that documentation is as regular, multicopied,

and ubiquitous in disordered nations as in the United

States, a notion that crops up frequently, is unrealistic

concerning conditions actually prevailing in the Third

World.” Hor v. Gonzales, 421 F.3d 497, 501 (7th Cir. 2005)

(citation omitted). The IJ also disregarded the wealth of

corroborating evidence in the record that supports Ayi’s

political activities and membership in the opposition

movement. In addition to his own consistent and thorough

testimony, Ayi provided the IJ with his LTDH Membership

card and two letters corroborating his political activities on

behalf of the UFC. Ayi also provided the IJ with copies of

his pen-named articles, the summons for his arrest, and the

letter from his cousin indicating that he should flee.

The corroborating evidence that Ayi offered was either

dismissed by the IJ as raising more questions than answers

or considered as not enough. But the IJ did not explain, as

Diallo and Gontcharova require, why it was reasonable to

expect the corroboration he wanted, nor did he explain why

the applicant’s reason for not supplying the desired corroboration was inadequate. Diallo, 439 F.3d at 765-66;

Gontcharova, 384 F.3d at 877. We have held that the “IJ’s

skepticism—utterly unsupported by any facts in the

record—with respect to [petitioner’s testimony] does not

form a valid basis for a negative credibility determination

in the face of other corroborating evidence . . . presented.”

Lin v. Ashcroft, 385 F.3d 748, 755-56 (7th Cir. 2004). The

IJ’s speculation, which was not grounded in the record, is

inappropriate. Since the IJ’s credibility determination was

not supported by specific cogent reasons that bear a legitimate nexus to the finding, it cannot be upheld.

Troubling to us is the surprising lack of regard for the

rich record in this case coupled with the fact that at least
No. 05-3320 13

1 Specifically, the IJ refers to Ayi as a “her” twice in the opinion:

“Therefore the Court must rely on the corroborating evidence to

determine whether the Respondent has met her burden of

establishing eligibility for asylum. The corroborating evidence

in this case, rather than supporting her claim, raises additional questions.” IJ opinion at 10 (emphasis added).

parts of the IJ’s opinion appear to be a “cut and paste” job

from previous opinions.1

 While Ayi offered an affidavit from

his treating physician (who noted the scarring and damage

on Ayi’s hands and knees), the IJ’s opinion does not mention

this corroborating evidence nor does he explain if or why it

was excluded. Our concern is not new, Pasha v. Gonzales,

433 F.3d 530 (7th Cir. 2005); Benslimane v. Gonzales, 430

F.3d 828, 829-30 (7th Cir. 2005), but unfortunately, it has

not abated.

The remaining arguments in Ayi’s appeal need not be

addressed at this time since we find that the IJ’s credibility

determination was not based on substantial evidence. We

therefore remand his petition to the Board of Immigration Appeals for proceedings consistent with this opinion.

III. Conclusion

For the foregoing reasons, Ayi’s petition for review is

GRANTED and this case is REMANDED to the Board for

proceedings consistent with this opinion.
14 No. 05-3320

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—8-21-06