Petition for Review of an Order of the Board of Immigration Appeals (No. A97-152-778) Immigration Judge: R.K. Malloy.
The opinion of the court was delivered by: Aldisert, Circuit Judge
Submitted Under Third Circuit LAR 34.1(a) March 9, 2006
Before: ROTH and ALDISERT, Circuit Judges, and RODRIGUEZ,*fn1 District 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.
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 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]security 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.)
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 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.*fn2 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 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.
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 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 ...