Aboubecrine N'DIOM, Petitioner-Appellant, v. Alberto R. GONZALES, Attorney General of the United States, Respondent-Appellee, 442 F.3d 494

MERRITT, J., delivered the opinion of the court. MARTIN, J. (pp. 500 - 502), delivered a separate concurring opinion. GILMAN, J. (pp. 502 - 505), delivered a separate dissenting opinion. OPINION MERRITT, Circuit Judge. In this asylum case of the petitioner N’Diom, we review the May 4, 2004, decision of the Board of Immigration Appeals of the U.S. Department of Justice found at Joint Appendix (“J.A.”) at 8-9.

As in so many such cases now coming before us, the Board’s decision affirms the August 29, 2003, decision of the Immigration Judge finding N’Diom’s testimony at the hearing to be “not credible” (J.A. at 16-27) based entirely on the fact that N’Diom’s testimony before the Judge was much more detailed and specific as to the basis for his fear of persecution than the information he gave the Asylum Officer at the time he initially applied for asylum. (See J.A. at 165-66, 197.) The pertinent statutory basis and standard of review for our remand action in this case is set out in INS v.

Ventura, 537 U.S. 12, 13, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam): Federal statutes authorize the Attorney General, in his discretion, to grant asylum to an alien who demonstrates “persecution or a well-founded fear of persecution on account of ... [a] political opinion,” and they require the Attorney General to withhold deportation where the alien’s “life or freedom would be threatened” for that reason. Immigration and Nationality Act, §§ 101(a)(42)(A), 208(a), 243(h), 66 Stat. 166, as amended, 8 U.S.C. §§ 1101(a)(42), 1158(a), 1253(h)(1) (1994 ed. and Supp. V).

No one disputes the basic legal principles that govern remand. Within broad limits the law entrusts the agency to make the basic asylum eligibility decision here in question. E.g., 8 U.S.C. § 1158(a); 8 U.S.C. § 1253(h)(1) (1994 ed.); Elias-Zacarias, supra, at 481, 502 U.S. 478, 112 S.Ct. 812, 117 L.Ed.2d 38; INS v. Aguirre-Aguirre, 526 U.S. 415, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999). See also 8 CFR § 3.1 (2002). In such circumstances a “judicial judgment cannot be made to do service for an administrative judgment.” SEC v. Chenery Corp., 318 U.S. 80, 88, 63 S.Ct. 454, 87 L.Ed. 626 (1943).

Nor can an “appellate court ... intrude upon the domain which Congress has exclusively entrusted to an administrative agency.” Ibid. A court of appeals “is not generally empowered to conduct a de novo inquiry into the matter being reviewed and to reach its own conclusions based on such an inquiry.” Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985). Rather, “the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.” Ibid. Cf. SEC v.

Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947) (describing the reasons for remand). That is the procedure we are following in this case. I. N’Diom is a native and citizen of the West African Islamic Republic of Mauritania, a country of approximately three million people. His ethnic minority group, the black African “Fulani,” comes from the southeastern part of the country, and Senegal to the south.

The State Department’s “Country Reports on Human Rights Practices” of February 25, 2004 (J.A. at 151— 64), states that “successive governments— both civil and military — have pursued various policies of ‘Arabization’ ” that involve discrimination, imprisonment and torture of members of ethnic minorities like the Fulani and also that slavery of black Africans still persists in some areas. (J.A. at 161, 163.) The same Report states that the government’s “human rights record remained poor,” “unlawful killings by security forces” were reported, “the security forces reportedly used excessive force, beat, or otherwise abused detainees,” “restricted freedom of speech, the press and assembly ... and religion,” discriminated against “southern-based ethnic groups,” and “international reports continued that slavery in the form of involuntary servitude persisted.” (J.A. at 151-52.) Press reports after the State Department country report in 2004 state that a military coup occurred August 3, 2005.

See Wikipedia, Mauritania, at http://en.wikipedia. org/wiki/Mauritania (last visited Jan. 17, 2006); U.S. Dep’t of State, Background Note: Mauritania, at http://www.state.gov/ r/pa/ei/bgn/ 5467.htm# govtnote (last visited Jan. 17, 2006). How those events have now affected country conditions remains unclear.

At the trial the Immigration Judge ruled inadmissible documents and witness testimony proffered by N’Diom because they were not submitted ten days in advance under local rules, and so the Judge ruled that, “Thus the ... case depended upon his testimony.” (J.A. at 18.) The Judge summarized as follows the testimony pointing to six “discrepancies” that led him to reject N’Diom’s testimony. No “discrepancies” were found in his recital of the torture he received. All of the so-called “discrepancies” are simply omissions to state a particular detail.

None are lies in the sense of a statement opposite to or inconsistent with a prior statement: Discrepancy 1 The respondent testified that he was a Fulani, native and citizen of Mauritania, who went to Libya to obtain an education at the expense of the government of Mauritania. He testified that, when the Mauritanian government began to deport Fulani and other black citizens from Mauritania to Senegal and to Mali, the respondent protested and may have even formed an organization.

The activities of the respondent came to the attention of the Mauritanian ambassador to Libya who summoned him to the embassy and told him to stop these activities. The respondent refused. Shortly thereafter, the government of Libya took the respondent into custody. In the personal statement found at Exhibit 6, the respondent described being psychologically and physically tortured by the Libyan government for his purported hatred of Arabs.

The respondent testified today that the Libyan government only psychologically tortured him, but this is the first in a number of discrepancies which the Court will comment on during the course of this decision. The respondent testified that he returned to Mauritania under compulsion and was taken into custody upon arriving at the airport and was then taken to a police station.

The respondent testified that he was slapped by officers of the Mauritanian government and accused of being a member of FLAM, and that he wrote “lots of things against the law in the Fulani language.” The respondent testified that when he asked what it was that he wrote he was told that he would learn soon enough and the respondent testified that over the course of time he was tortured, including having electrodes applied to his genital parts and also being put into the jaguar position, which the Court understands from previous cases to involve basically trussing a human being and holding him upside down.

The respondent testified that he wrote songs, poetry, and plays in Fulani, but they were not published. He said that these songs, plays, and poetry were known to the authorities in Mauritania and, at the request of the Court, he recited a few lines of one song called Unity of Mauritania in which he lauded the importance of all Mauritanian citizens to act in unity. Discrepancy 2 The respondent testified that he was five months in jail and then moved from the jail at the Fourth District of Nouakchott to a jail called Hundred Meter Jail, referring to the size of a typical cell apparently.

The respondent testified that the Hundred Meter Jail was a particularly bad jail and that this was a situation where he was required to live basically underground and he was either in darkness or had bright lights shown upon him. The respondent testified that he is required to wear eye glasses as a result of that, but he does not have a letter from a physician explaining how the injuries which he said he has suffered were caused. [Discrepancy 2.] That is, the respondent has not presented any objective evidence concerning the necessity for him to wear glasses.

Discrepancy 3 The application for asylum states that the respondent was released in March 1993 and then is silent until a fear that the respondent following the break up of the UFD Political Party [sic]. This is to be contrasted with the testimony he offered today which was that after he was released from custody in 1993 he was held in a kind of house arrest between 1993 and 1997 and 1998. [Discrepancy 3] The respondent testified that he was living in the home of his cousin who has submitted documents in support of his application, see Exhibits 5-H and 5-1.

Discrepancy 4 The respondent testified that he was required to report to a police station in Nouakchott every Monday and he was not allowed to leave the city. This does not appear in his 1-589. Discrepancy 5 The Government, on cross-examination, introduced notes of the asylum officer at Exhibit 8 and the Assessment to Refer at Exhibit 9. Apparently, before the asylum officer he told about being required to report, but did not say anything about the second arrest which he testified about today. Discrepancy 6 The respondent testified that on October 12, 1998 officers came to the house and picked the respondent up.

He stated today that this so shocked his then wife, who was pregnant, that she ultimately died and this does not appear in the 1-589 nor was it related to the asylum officer. Indeed, the handwritten notes of the officer, at page 6, indicate that the officer asked the respondent if anything had happened to him after his release in 1993.

The respondent replied to the officer that nothing happened except that he was required to report and that he felt harassed by being required to report on such a regular basis. (J.A. at 18-21.) (Emphasis added.) The Judge summarized his ruling in conclusory fashion, as follows: To recapitulate, the 1-589 contains no testimony about an arrest in 1998 or an earlier house arrest.

The 1-589 says nothing about the respondent being required to report every Monday during his earlier arrest nor does it say anything about his wife dying of shock following an arrest of the respondent in 1998 and his being jailed for one month. The asylum officer has no reason to be incomplete in his or report [sic]. The Court finds that the Assessment to Refer is a reliable document and does rely on it, making negative credibility determinations against the respondent.

Because of the confused nature of this record, especially as it relates to the various stories that the respondent has told before the tribunals of the United States Government, the Court cannot conclude that the respondent has offered credible testimony today. (J.A. at 25-26.) The reason that N’Diom was unable to introduce any witness or documentary evidence corroborating his testimony was that his immigration lawyer at the trial did not understand or comply with the local ten-day rule requiring advance submission.

The Judge commented several times on counsel’s violations of the local rules, his ineffectiveness in conducting examination of N’Diom, and the incompetence of his office in preparing for the trial. II. We believe this case needs to be remanded for further consideration in a full and fair hearing with the counsel N’Diom has now obtained on appeal or other competent counsel. In light of the recent coup, the earlier 2004 human rights conditions reported for Mauritania, and the hostile treatment by government security forces of members of the Fulani minority, retrial of N’Diom’s claim is necessary.

There is no indication in the record before us that the Immigration Judge or the Board took cognizance of the dire human rights situation in Mauritania or the mistreatment of the black African Fulani by the government. If the country reports that explain the torture, slavery, and other human rights violations are unimportant or irrelevant to this case, we would like to have some explanation of the Board’s views on this subject. See, e.g., Mostafa v.

Ashcroft, 395 F.3d 622, 625-26 (6th Cir.2005) (remanding where the Board’s opinion “contains absolutely no discussion of the country conditions in Iran” and “never mention[s]” the State Department reports included in the record); Zubeda v. Ashcroft, 333 F.3d 463, 477-78 (3d Cir.2003) (remanding where the Board’s opinion “totally ignores ... reports from government agencies and human rights organizations that detail what appear to be country wide, systematic incidents of gang rape, mutilation, and mass murder”); Kamalthas v.

INS, 251 F.3d 1279, 1283 (9th Cir.2001) (remanding where “nowhere in its opinion did the BIA consider the documented country conditions in Sri Lanka which corroborate the widespread practice of torture against Tamil males”); Mansour v. INS, 230 F.3d 902, 908-09 (7th Cir.2000) (remanding where the Board’s opinion failed to discuss a State Department report detailing country conditions in Iraq, and observing that “had the BIA addressed the Report it might have viewed [the applicant’s] torture claim differently”).

The Judge and the Board of Immigration Appeals did not find much of N’Diom’s testimony lacking in credibility. In broken English N’Diom explained that a translator wrote his original asylum petition and had left out details and that the asylum officer had cautioned him to “keep it short.” Neither the Immigration Judge nor the Board explains why they disbelieve this explanation for the earlier omission of details covering his wife’s death and the persecution he suffered upon his arrival back in Mauritania after his initial period of imprisonment and torture. See, e.g., Zheng v.

Gonzales, 154 Fed.Appx. 240, 241 (2d Cir.2005) (unpublished)" (remanding where the Immigration Judge “did not specifically address” the applicant’s proffered explanations for inconsistencies nor state his reasons for finding the explanations to be “not reasonable” and “not rational”); Guo v. Ashcroft, 361 F.3d 1194, 1201 (9th Cir.2004) (“An adverse credibility finding is not based on substantial evidence when ‘[t]he BIA [or the IJ] did not comment on [an applicant’s] explanation, nor suggest any reason that it found his explanation not credible’.”); Campos-Sanchez v.

INS, 164 F.3d 448, 450 (9th Cir.1999) (noting that the BIA is required to “address in a reasoned manner the explanations that [the applicant] offers for these perceived inconsistencies”). In addition, the record discloses that N’Diom’s counsel was clearly lacking in competence and diligence, as the Immigration Judge noted several times. (J.A. at 17, 23-24.) As a result, witness testimony and documentary evidence purporting to explain why N’Diom’s alleged fear of persecution was genuine and legitimate were excluded.

Had the Board considered this evidence relevant to his fear of persecution in Mauritania, it might have adjudicated N’Diom’s claim differently. N’Diom may or may not have a meritorious claim for asylum. We cannot, however, conduct a meaningful review where the Board does not sufficiently articulate its reasoning nor evaluate the applicant’s claim “on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). We understand that immigration officials and judges are hard pressed by case overload. We sympathize.

Federal appellate judges are confronted by the same problem. Nevertheless, the policy of our asylum law is not to deport aliens who have a justified fear of returning to their native country. The combination of (1) a coup in Mauritania and uncertainty about present conditions, (2) incompetent counsel, and (3) questionable rejection of N’Diom’s testimony — testimony that seems plausible and consistent with known facts about conditions in Mauritania— leads us to vacate the decision of the Board of Immigration Appeals and remand the case for retrial of the question of N’Diom’s eligibility for asylum.

If the Board still believes after retrial that N’Diom is lying, a more detailed explanation of its reasons for disbelieving the testimony is necessary. Does the administrative agency disbelieve his testimony concerning his arrest in Lybia, his testimony of torture upon returning to Mauritania, and his imminent arrest just before he left the country? If so, what facts are its contrary findings based on? See, e.g., Sylla v. INS, 388 F.3d 924, 926 (6th Cir.2004) (noting that an adverse credibility finding “must be supported by specific reasons”); Gao v.

Ashcroft, 299 F.3d 266, 276 (3d Cir.2002) (Adverse credibility findings must be “supported by specific cogent reasons. The reasons must be substantial and bear a legitimate nexus to the finding.”). Accordingly, the decision of the Board of Immigration Appeals is vacated and the case is hereby remanded to the Board for further consideration in light of this opinion. .

Our dissenting colleague does not understand that a court of appeals in reviewing the BIA in an asylum case may simply reverse because it definitely concludes that the BIA is wrong or alternatively may remand for further consideration when we find that the administrative proceedings leave us in substantial doubt as to the correctness of the proceedings as a whole and the justice of the result. See INS v. Ventura, supra, and the cases cited above in

Section II. In addition, the dissenting opinion takes issue with our view of the (1) agency's conclusion based on credibility findings, (2) the clear incompetence of counsel, and (3) the failure of the agency to discuss intelligently the country conditions that appear to support N'Diom's claim. These three problems together create the need for the remand.

The dissent may or may not be correct that each problem standing alone and in isolation from the others may not justify a remand, but taking all three of these factors together we believe reconsideration is necessary in order to be confident that a serious mistake is not taking place here. The law is not as rigid and isolated from the real world as our dissenting colleague would lead us to believe. Administrative review requires a hard look at all of the factors taken together, not simply a narrow focus that treats each as though it were the only problem in the case.