Olakitan Eusebio v. John Ashcroft, Attorney General of the United States

LAY, Circuit Judge,

dissenting.

I respectfully dissent.

While I acknowledge that our standard of review places an onerous burden on an asylum applicant seeking reversal of an agency decision, I disagree with the majority’s conclusion that Eusebio has failed to overcome that burden. I believe that the record plainly demonstrates that Eusebio has a well-founded fear of future persecution based on his political beliefs, and that no reasonable fact-finder could find to the contrary. See Kratchmarov v. Heston, 172 F.3d 551, 554 (8th Cir.1999). By denying asylum on this record, the INS sends a young man back to Togo to face certain persecution and torture.

In determining that substantial evidence supports the IJ’s decision, the majority overlooks significant instances of persecution that occurred immediately before, and that were the motivating factors in, Euse-bio’s decision to depart for the United States. These repeated instances of persecution were the subject of detailed testimony by Eusebio, and the IJ did not doubt his credibility as to any of the underlying facts. The INS also overlooks that the State Department report concerning Togo shows a great deal of unrest and persecution based upon political belief.

Both the IJ and the majority completely minimize the events surrounding Eusebio’s act of giving Eyadema’s son a failing grade in physics and chemistry, dismissing them as the result of a personal dispute between Eusebio and the son’s bodyguard. Closer analysis of the record reveals that the facts cannot reasonably bear such a construction, and that the dispute was motivated by political, not personal, differences. After Eusebio issued the bad grade, Eyadema was upset with his son’s failure and contacted the headmaster of the school, seeking to have it changed. When Eusebio refused to do so and further refused to act as the son’s tutor, the headmaster immediately switched Euse-bio’s teaching assignments. Eusebio encountered the son’s bodyguard approximately six weeks later, whereupon the *1093bodyguard informed Eusebio that he would regret his insolence.

One week after Eusebio’s encounter with the bodyguard, police arrested Euse-bio at his home and took him to the sta-tionhouse, where he was subjected to interrogation accompanied by physical abuse. During this interrogation, Euse-bio’s accusers expressly referred to his act of giving Eyadema’s son a failing grade, viewing the incident as part of a larger scheme on the part of Eusebio in opposition to the Eyadema regime. It was only after his mother and several friends intervened that Eusebio was released, but not before he was warned to cease his opposition politics or face certain death. A few days later, the government issued a subpoena to Eusebio to appear “for the purposes of an investigation.” Fearing that the retribution he had momentarily escaped was about to come to fruition, Euse-bio used his student visa to flee to the United States.

Against the combined weight of the foregoing evidence, the majority asserts that “the IJ reasonably characterized [the incident] as a personal dispute between Mr. Eusebio and the bodyguard of Mr. Eyadema’s son.” Ante, at 1092. The only apparent support for this conclusion is the majority’s reference to the “extremely deferential” standard of review applicable to cases such as that now presented on appeal. To be sure, the decisions of the immigration courts are to be treated with considerable respect, rendered as they are by a tribunal with specialized expertise and experience. Yet this deference is not without limits; factual determinations must be supported by substantial evidence, not mere supposition. As a panel of this court noted only a short time ago, “[substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Menendez-Don-is v. Ashcroft, 360 F.3d 915, 918-19 (8th Cir.2004), slip op. at 5 (citation and quotation omitted).

What then, is the substantial evidence to support the IJ’s conclusion that the confrontation between Eyadema’s bodyguard and Eusebio was not politically motivated? The IJ relies upon an exhibit showing that Eyadema’s son dropped out of school before receiving his degree, inferring that the son had received bad grades in the past and that Eusebio’s grade assignment was unlikely to arouse the ire of Eyadema. The IJ also relies heavily on the fact that the confrontation did not occur until six weeks after Eusebio refused to change the son’s grade, and that the bodyguard was not even sure that Eusebio was the teacher responsible. How these facts can rationally be tied together to reach the conclusion that Eusebio’s subsequent arrest, interrogation, physical abuse, and subpoena for investigation by the Eyadema regime was due to a personal grudge by a bodyguard escapes me.

Instead, I would hold that Eusebio met his burden of establishing eligibility for asylum by demonstrating that he harbored a well-founded fear of persecution on account of his political opinion. See 8 U.S.C. §§ 1101(a)(42)(A), 1158(b). The IJ’s conclusion that Eusebio’s fear is not objectively reasonable because he is merely a “rank-and-file member” of an opposition party completely ignores the fact that Eusebio had previously been singled out by Eyadema for investigation and abuse. The same holds true for the IJ’s reliance on the fact that much of Eusebio’s family continue to live in Togo unharmed. Accordingly, I would remand the case to the Board of Immigration Appeals with instructions to grant Eusebio’s petition.