UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 11-1441


AKOUAVIDOVI DJONDO,

                Petitioner,

           v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.



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


Argued:   September 18, 2012             Decided:   November 9, 2012


Before NIEMEYER, SHEDD, and DAVIS, Circuit Judges.


Petition for review denied by unpublished per curiam opinion.
Judge Davis wrote a dissenting opinion.


ARGUED: Matthew Weaver Steele Estes, SKADDEN, ARPS, SLATE,
MEAGHER & FLOM, LLP, Washington, D.C., for Petitioner. Lindsay
Corliss, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Respondent.    ON BRIEF: Donald P. Salzman, SKADDEN, ARPS,
SLATE, MEAGHER & FLOM, LLP, Washington, D.C., for Petitioner.
Tony West, Assistant Attorney General, Civil Division, Daniel E.
Goldman, Senior Litigation Counsel, Office of Immigration
Litigation, Elliott Daniels, Law Clerk, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Respondent.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Akouavidovi         Djondo,    a    native        and     citizen    of    Togo,    was

admitted into the United States in April 2005.                             Several months

later, Djondo applied for asylum, withholding of removal, and

protection under the Convention Against Torture (“CAT”).                                   An

Immigration Judge (“IJ”) denied her application after making an

adverse       credibility      finding,          and     the     Board     of    Immigration

Appeals       (“BIA”)      affirmed        the       IJ’s    decision.           Djondo    now

petitions for review, arguing that the BIA’s decision is not

supported      by    the     record    and       the     BIA     failed    to    follow    the

requirements of the REAL ID Act.                       For the reasons that follow,

we deny the petition for review.



                                                I.

                                                A.

       Djondo is a native and citizen of Togo who entered the

United States in April 2005.                     Djondo filed her application for

asylum,      withholding      of     removal,         and   protection      under    CAT    on

August 24, 2005, alleging that she had been persecuted in her

home country for her political beliefs.

       Togo    had    been    under       the        control     of   General     Gnassingbe

Eyadema      from    1967    until    his        death      in   2005.      While    General

Eyadema was in power, Djondo worked to bring political change in

Togo    as     a    member    of     the     opposition          political       party,    the

                                                 2
Convention Democratique des Peuples Africains (“CDPA”).                                       When

General       Eyadema      died    on     February         5,    2005,     his    son,       Faure

Gnassingbe, was installed as Togo’s next president by the Rally

of   the   Togolese        People       (“RTP”),       the      political       party    of    his

father.           Faure    Gnassingbe       stepped          down    under      international

pressure on February 25.                  According to reports from the State

Department         and     Amnesty      International,              two   days      later,      on

February      27,    in     response      to     the       political      upheaval       in    the

country,      a    women’s    group       that       was    part    of    the    CDPA    held     a

protest in Lome, Togo, during which the participants wore red.

This rally was broken up when RTP security forces attacked the

protestors, eventually resulting in five deaths.

                                               B.

       Djondo’s application was based on her claim that she was

attacked      at    this     red-shirt      rally          in   Lome.      In    her     written

application and in her testimony before the IJ, Djondo stated

that she participated in the red-shirt rally and that after RTP

security       forces      broke     up    the       rally,      they     spotted       her    and

attacked      her,       causing   her    to     lose       consciousness        for    a     short

time.      According to Djondo, she eventually was assisted to her

cousin’s house, and her cousin took her to the hospital for

treatment.         Djondo then returned to her cousin’s house to hide

from    the    security       forces.          Throughout          her    written      and     oral



                                                 3
testimony, Djondo gave February 20 as the date of the rally

where she was attacked.

       In     addition       to     her    own        testimony,      Djondo   offered     the

affidavit      and    testimony           of    her    half-sister,        Massan   Gnininvi.

Gnininvi       testified       that       the    rally    was    on    February     20,    that

Djondo had attended the rally, and that, although Gnininvi was

not present when Djondo was attacked, Gnininvi heard that people

were       beaten   at   the      rally.         Gnininvi’s        affidavit       provides   a

similar account, including the February 20 date.

       Djondo also offered written, unsworn statements from six

Togolese      citizens.           The     statement       from     Edoh    Komla,    Djondo’s

cousin, states that Djondo came to his house after the rally and

hid there.          Like Djondo and Gnininvi, he claims that the rally

at which Djondo was beaten took place on February 20. 1                                     Two

statements were from other members of the CDPA, who stated that

Djondo       was    beaten     by     security         forces    at    a   rally    in    which

participants wore red shirts.                    A statement from Djondo’s husband

claimed that Djondo was assaulted by security forces during a

march, but that statement does not specify which march, other

than saying the march was organized by women of the opposition

party.        The fifth statement is from Djondo’s mother, who said


       1
       Of these six written statements, only this one provided a
specific date for the rally.



                                                  4
that Djondo had been a long-time opponent of the government.

Her   mother’s   statement       did   not     discuss     any     details        of   the

protest in February 2005, other than saying it was “the last

straw that broke the camel[’]s back.”                 J.A. 685.      The sixth and

final statement was from the man who helped Djondo get to the

United    States;    it   said    nothing      specific     about        a    rally    in

February 2005.

      Finally, Djondo offered photographs of the rally, her CDPA

membership card, and an attestation of her CDPA membership.                            She

also included country reports on Togo from the State Department

and Amnesty International.

                                         C.

      The IJ rejected Djondo’s application. 2                The IJ found that

the evidence showed that Djondo was a member of the CDPA but did

not support a credible claim that she was entitled to the relief

she   sought.        Applying      the        REAL    ID    Act,     8        U.S.C.     §

1158(b)(1)(B)(iii), the IJ stated that Djondo’s “claim is not

consistent    with    the   evidence      that       she   provided          on   country

conditions” and that there was a “discrepancy which relates to


      2
       This was the second time the IJ had rejected Djondo’s
claim.   The first time Djondo’s application was denied, the IJ
refused to consider the documentary evidence because the
translation certifications did not comply with applicable rules.
Djondo appealed, and the BIA remanded the case with instructions
to consider that evidence.



                                         5
[Djondo’s] claim of having been arrested and detained during the

course of the march that she described as having occurred on

February 20, 2005.”          J.A. 14.             The IJ did not find credible

Djondo’s explanation that she forgot or could not remember the

correct date. Regarding the supporting documents, the IJ noted

that    one   document     used   the    same       incorrect     date—February      20,

2005—for the red-shirt rally and that the other documents lacked

specifics      about   the   rally      at       which   Djondo    claimed    she    was

attacked.      The IJ likewise decided that the photographs of the

rally   were    insufficient      because         Djondo   could   not   be   seen    in

them.

       The BIA affirmed the IJ’s decision.                 The BIA, also applying

the REAL ID Act, upheld the IJ’s credibility determination.                           It

noted that Djondo’s testimony and written application, as well

as Gnininvi’s testimony and affidavit and Edoh Komla’s letter,

all used the same incorrect date of February 20, 2005.                        The BIA

also upheld the IJ’s determination that the other evidence did

not support Djondo’s claim, concluding that the evidence was

“insufficient to bolster [Djondo’s] already questionable version

of events.”      J.A. 5.



                                         II.

       Djondo now petitions for review of the denial of her claim

for asylum, withholding of removal, and protection under CAT.

                                             6
When reviewing the BIA’s decision, we must uphold the decision

so long as it is not “manifestly contrary to law.”                             8 U.S.C. §

1252(b)(4)(C).        Thus, we must accept the BIA’s decision unless

the    evidence      “compels”      a    contrary             conclusion.       Dankam   v.

Gonzales, 

, 119 (4th Cir. 2007) (quoting I.N.S. v.

Elias-Zacarias,       

,       481    n.1    (1992))     (emphasis   in

original).

        An    IJ’s    determination        of        a    witness’s       credibility    is

governed by the REAL ID Act, which provides:

       Considering the totality of the circumstances, and all
       relevant factors, a trier of fact may base a
       credibility determination on the demeanor, candor, or
       responsiveness of the applicant or witness, the
       inherent plausibility of the applicant’s or witness’s
       account, the consistency between the applicant’s or
       witness’s written and oral statements (whenever made
       and whether or not under oath, and considering the
       circumstances under which the statements were made),
       the internal consistency of each such statement, the
       consistency of such statements with other evidence of
       record (including the reports of the Department of
       State on country conditions), and any inaccuracies or
       falsehoods in such statements, without regard to
       whether an inconsistency, inaccuracy, or falsehood
       goes to the heart of the applicant’s claim, or any
       other relevant factor.

8    U.S.C.   §   1158(b)(1)(B)(iii).                The       IJ’s    findings   that   an

applicant was not credible are “entitled to judicial deference

if    such    findings      are     supported            by     substantial     evidence.”

.

       Although      the    IJ’s    findings             of    fact    are    given   broad

deference, that deference is not absolute.                            Camara v. Ashcroft,

                                               7


, 367 (4th Cir. 2004).                        For the court to uphold a

decision that the witness was not credible, an IJ “should offer

a specific, cogent reason for [her] disbelief.”                           

and cogent reasons include inconsistent statements,

contradictory evidence, and inherently improbable testimony; [in

particular,]        where    these       circumstances         exist    in    view    of    the

background evidence on country conditions, it is appropriate for

an     Immigration          Judge     to        make      an        adverse       credibility

determination on such a basis.”                      Tewabe v. Gonzales, 

,   538    (4th    Cir.       2006)    (alteration          in    original)     (internal

quotation mark omitted).              On the other hand, that determination

may not be based on “speculation, conjecture, or an otherwise

unsupported personal opinion.”                      

Ashcroft,

, 250 (3d Cir. 2003) (en banc)).

       The Immigration and Nationality Act (“INA”) authorizes the

Attorney General to grant asylum to an alien who qualifies as a

refugee      under     8     U.S.C.       §     1101(a)(42)(A).               8    U.S.C.     §

1158(b)(1)(A); see also 

.                              A refugee is

“someone ‘who is unable or unwilling to return to’ [her] native

country      ‘because       of    persecution        or    a    well-founded         fear   of

persecution on account of . . . political opinion’ or other

protected grounds.”              

§ 1101(a)(42)(A))

(omission      in    original).               Proving     a    well-founded          fear   of

persecution has both a subjective and an objective component.

                                                8


.                         Alternatively, if a petitioner can

show      past    persecution,          a    presumption         of    a   well-founded       fear

arises.          

even if the trier of fact has

determined that the petitioner’s testimony is not credible, the

BIA    must      consider        independent              evidence    of   past     persecution.

Anim v. Mukasey, 

, 252 (4th Cir. 2008).                                  The person

seeking asylum has the burden of showing that she meets these

requirements.            Djadjou v. Holder, 

, 272 (4th Cir.

2011).

       The INA also provides for the withholding of removal.                                    8

U.S.C. § 1231(b)(3).                 The burden for prevailing on this claim is

higher than under an asylum claim because to succeed on the

withholding        claim,        the    petitioner           must    “demonstrate      a   ‘clear

probability of persecution’ on account of a protected ground.”

(quoting INS v. Stevic, 

,

430       (1984)).         Protected             grounds      include       “race,    religion,

nationality,         membership             in    a       particular       social    group,    or

political opinion.”               Haoua v. Gonzales, 

, 232 (4th

Cir.      2007)    (citing       8     U.S.C.         §    1231(b)(3)(A)).          Because    the

burden of proof for withholding of removal is higher than for

asylum, an applicant who is ineligible for asylum is necessarily

ineligible for withholding of removal.                           

.

If    a    person        meets    this       higher         burden,    however,      relief    is

mandatory.         

“prohibits the United States from returning any

person to a country where the person has demonstrated that it is

more likely than not that [s]he will be tortured if returned to

such country.”         Zelaya v. Holder, 

, 161 (4th Cir.

2012).         The   reason       that   the      person      would   be    tortured      is

irrelevant; all that matters is that the person has shown that

torture is more likely than not, 

–16,

applying an objective standard, 

.                                  As

with asylum and withholding of removal claims, the petitioner

bears    the    burden      of    showing   these       requirements       are    met.     8

C.F.R. § 208.16(c)(2).



                                            III.

      Djondo argues that the record does not support the BIA’s

decision and that the BIA did not follow the REAL ID Act in

making the adverse credibility determination, but we disagree.

Applying these standards, we conclude that the record contains

substantial evidence to uphold the BIA’s decision.

      The BIA rejected Djondo’s assertion that the simple mistake

of    one    date     was        the   basis      for    the    adverse      credibility

determination.         Instead, the BIA noted that the mistaken date

appears not only in Djondo’s testimony and written application,

but   also     in    Gnininvi’s        testimony        and   affidavit     and    in    the

statement from Edoh Komla.               Far from being a one-time mistake,

                                             10
this       repeated    error    was     the     only    specific     date   that   Djondo

offered for the date of the rally in any of the oral or written

evidence from people who claimed to have firsthand knowledge of

events.        This error—from Djondo, Gnininvi, and Komla—directly

conflicted with the date of the rally noted in reports from the

State Department and Amnesty International, which the IJ found

“far more probative.” 3             J.A. 300–01.             The IJ asked Djondo about

this mistake, and the IJ did not credit her answer that she

simply forgot or could not remember.                     J.A. 4, 14–16.        Given that

the    IJ     heard     Djondo’s        testimony        and     explanation     for   the

incorrect date, the IJ’s rejection of that explanation deserves

great deference.         See Concrete Pipe & Products of Cal., Inc. v.

Constr. Laborers Pension Trust for S. Cal., 

, 623

(1993) (noting that “the factfinder is in a better position to

make       judgments    about       .   .   .    .     the    credibility   of     a   live

witness”).

       In      addition,       in       reaching        its      adverse    credibility

determination, the BIA fully complied with the requirements of

the REAL ID Act.           The BIA and the IJ both expressly cited the


       3
       Djondo’s evidence raises other questions as well.     For
instance, Djondo testified that after she arrived at her
cousin’s house, her cousin took her to the hospital. J.A. 592.
Her cousin, however, never mentioned any trip to the hospital in
his written statement; instead, he said that he had to “hide
her” in his house “to save her.” J.A. 678.



                                                11
REAL ID Act and noted that their decisions were based on “the

totality of the circumstances.”             J.A. 4, 14.     The BIA was not

required to discuss—or even list—every factor in the REAL ID Act

in discussing Djondo’s credibility.             Cf. Zuh v. Mukasey, 

, 511 (4th Cir. 2008) (holding, in the context of the

BIA   exercising   its   discretion    in    denying   asylum   to   an   alien

qualifying as a refugee, that “an IJ need not analyze or even

list every factor”).        Djondo contends that the BIA should have

responded to more of her arguments about why her testimony was

credible, but the REAL ID Act imposes no such requirement.                  The

REAL ID Act merely requires that the BIA’s decision be based on

the   totality   of   the   circumstances     and   all   relevant   factors.

The BIA and the IJ based their decisions on that standard, J.A.

4, 14, and in their decisions, both discussed the evidence and

factors on which their conclusion was based. 4            They gave a cogent

reason—the repeated wrong date—as the basis for the decision.



      4
       In Zuh, we noted that when the BIA decides, in its
discretion, to deny asylum to a qualifying refugee, the IJ “must
discuss the positive or adverse factors that support his or her
decision.”    

.    Djondo argues that this
language required the IJ to discuss the factors that suggested
her claim was credible.    The language on which Djondo relies
does not compel such a result: that language uses “or,” meaning
that the IJ need not discuss both positive and adverse factors;
rather, the IJ need only discuss the factors that support the
decision.    So long as the record demonstrates that the IJ
considered the relevant factors, the IJ has met her obligations.
See 

and IJ did just that. J.A. 4, 14.


                                      12
See 

.          The decision therefore satisfied

the requirements of the REAL ID Act.

     Despite Djondo’s assertion to the contrary, the BIA did not

need to explain why this erroneous date was material. 5               Before

Congress passed the REAL ID Act in 2005, “contradictions that

[did] not go to the heart of the applicant’s claim . . . [did]

not necessarily support an adverse credibility determination.”

.           The REAL ID Act, however, changed

this standard, removing this materiality requirement and thus

allowing any inconsistency or inaccuracy, “without regard for

whether [it] goes to the heart of the applicant’s claim,” to

serve as the basis of an adverse credibility determination.               8

U.S.C. § 1158(b)(1)(B)(iii); see also Singh v. Holder, - F.3d -

(4th Cir. 2012) (recognizing this change resulting from the REAL

ID Act).    Here, the BIA relied on the same repeated use of the

wrong    date   for   the   rally    as    the   basis   for   the   adverse

credibility determination.          The REAL ID Act allows the BIA to




     5
       The mistaken date is, in any event, likely very material.
Djondo claimed the rally was designed to push Faure Gnassingbe
to step down after his extraconstitutional installation as
president. J.A. 623. On February 20, 2005, this purpose would
have made sense, as Faure Gnassingbe was still in power.      On
February 27, 2005, however, this purpose would not have made
sense because Faure Gnassingbe had stepped down two days
earlier, on February 25.



                                      13
make the adverse credibility determination based on this error,

whether or not it went to the heart of Djondo’s claim.

       In addition to the repeated error about the date, the BIA

also   considered    and    rejected    the    other   evidence     that    Djondo

presented.      See 

–70 (noting that although

an   adverse    credibility    determination      is     often   “fatal”     to    an

asylum claim, such a finding is not necessarily fatal if the

other evidence can demonstrate past persecution).                  In this case,

the letter attesting to Djondo’s CDPA membership never mentioned

any persecution, despite being obtained for purposes of Djondo’s

asylum claim.      J.A. 5, 646.        The letters from Togolese citizens

offered little or no specifics about the rally at which Djondo

claimed she was beaten.            J.A. 16–17, 653–87.           The photographs

did not show Djondo in the crowd.             J.A. 5, 703–04.       The BIA thus

sufficiently considered and rejected this evidence in evaluating

Djondo’s   application.       See    Ganziami-Mickhou       v.    Gonzales,       

, 358 (4th Cir. 2006) (holding that the IJ does not need

to “discuss each item’s individual worth” in rejecting these

documents as incredible, so long as the IJ did not ignore them).

       Because Djondo offered the same evidence in support of all

three claims, the rejection of her evidence for purposes of one

claim means that the evidence must be rejected for all claims.

See 

(“An IJ cannot have it both ways,

finding    an   applicant    and   [her]     documents    incredible       for    one

                                        14
purpose and yet relying on them for another.”).           Thus, Djondo’s

claims for asylum, withholding of removal, and protection under

CAT all fail.



                                 IV.

     Ultimately, Djondo’s evidence does not compel us to reach a

result contrary to the BIA’s conclusion.          Regardless of whether

another factfinder would have found Djondo’s claim credible, the

BIA found that Djondo was incredible and had not carried her

burden to show that she was entitled to asylum, withholding of

removal,   and   protection   under    CAT.       The   record   contains

substantial evidence to support that conclusion.           Therefore, we

affirm the BIA’s decision and deny the petition for review.



                                              PETITION FOR REVIEW DENIED




                                 15
DAVIS, Circuit Judge, dissenting:

       For the reasons set forth within, I respectfully dissent.



                                          I.

       Akouavi Dovi Djondo 1 is a 56-year-old woman from Togo, which

was ruled for 38 years by Gnassingbe Eyadema (“Eyadema”) until

his death on February 5, 2005. According to the U.S. Department

of State, following “constitutional changes” and “quick action

by the military,” Gnassingbe’s son, Faure Gnassingbe (“Faure”),

was installed as the new president. J.A. 706. On February 7,

2005, the Togo government “banned all street demonstrations for

two months in observance of a national mourning period for the

late       president    Eyadema.”   

    the    ban   was

purportedly       lifted    on    February      18,    2005,   on    February      27

“security forces forcefully dispersed a peaceful women’s march,

beating       persons    with    batons   and    firing   tear      gas    into   the

crowds.” 

killed, and when their bodies were




       1
        The parties spell the petitioner’s first name as
Akouavidovi, and that is how it is spelled on the docket. Her
affidavit and application for asylum and withholding of removal,
however, list her first name as Akouavi and her middle name as
Dovi. See J.A. 179, 621.


                                          16
found,   they    “had   contusions    consistent         with       having    suffered

beatings from batons.” 2

     Djondo came to the United States on April 15, 2005, and on

August   5,     2005,   filed    an   application            seeking    asylum       and

withholding     of   removal     based        on    political       persecution      and

membership in a particular social group, as well as withholding

of removal under the Convention against Torture (the “CAT”). The

Immigration     Judge   (“IJ”)    denied           relief,    and    the     Board   of


     2
       J.A. 713. This is how the State Department describes the
events in Togo surrounding the women’s march that Djondo claims
she participated in, and is at the core of her claim:

          On February 5, 2005 President Gnassingbe Eyadema
     died. In an unconstitutional move, the military
     leadership   swore  in  Faure   Gnassingbe,  the  late
     President Eyadema’s son, as president. Immediate
     condemnation by African leaders followed by sanctions
     of the Economic Community of West African States and
     the African Union combined with pressure from the
     international community led finally to a decision on
     February 25 for Faure Gnassingbe to step down. Protest
     efforts by the public included a large demonstration
     in Lome [the capital of Togo] that was permitted to
     proceed peacefully. Prior to stepping down, Faure
     Gnassingbe was selected as leader of the ruling party
     and named as a candidate in the announced presidential
     elections to choose a successor to Eyadema. Abass
     Bonfoh, National Assembly Vice President, was selected
     to serve as Speaker of the National Assembly and
     therefore simultaneously became interim President.
     Real power apparently was retained by Faure Gnassingbe
     as he continued to use the offices of the President
     while the interim President operated from the National
     Assembly.

Background Note: Togo (February 17, 2012), http://www.state.gov/
outofdate/bgn/togo/196489.htm (last visited October 17, 2012).


                                         17
Immigration Appeals (“BIA”) affirmed. In my view, the record

before us, taken as a whole in its full sweep, compels us to

reject the IJ’s adverse credibility determination as lacking a

cogent foundation. Accordingly, I would grant the petition and

remand the proceedings.

      A.      Djondo’s Affidavit

      In the affidavit attached to her asylum application, Djondo

explained that her family had long been “strongly involved in

politics.” J.A. 752. Prior to Eyadema’s coup in 1967, Djondo’s

father     had    “actively        participated”      in    Togo’s     struggle     for

independence in the 1950s and early 1960s, and after Eyadema

came to power was persecuted by the regime. 

and   other      youths    were     “savagely    beaten”     and     arrested     after

opposing government efforts to interfere with a ceremony of the

Catholic Church. 

Leopold Messan Gnininvi

served as Secretary General of the Convention Démocratique des

Peuples Africains (“CDPA”), an opposition party. 

     elevated    her    political       involvement     in   1990,    when

Togo was “at the edge of the civil war.” J.A. 753. She “strongly

believed” the country would be “freed from the tyranny,” and

“secretly        joined”     the     CDPA.     

    she

participated in a “big demonstration” to welcome a delegation

from the European Union. 

to

disrupt the crowd using their machine[] guns. Many were killed

                                          18
and other[s] w[ere] wounded. [She] was also beaten and injured.”

her from more political involvement

for a number of years. 

for the CDPA was on an informal basis.

See J.A. 753. In 2002, however, she became “an official member

of     CDPA,”      of    which       Leopold        Gnininvi    had       become     Secretary

General. 

May 2002 she became a “counselor for the

national CDPA’s women wing,” and was “the local chapter’s vice-

president.” 

the time, they worked to support the

opposition to Eyadema, leading up to an election scheduled for

June       2003.   

   “everything        turn[ed]       to   a

disaster.” 

“move from [her] area to stay in [her]

husband[’s] second house in Hedzranawoe for future reprisal or a

persecution.” 

   Eyadema’s          death,   she     and    others     thought

things       would      change    such       that    they    would    be    “free     to    talk

freely.”        J.A.     754.        Accordingly,       “women       of     the     opposition

organized a march to ask[] the son of late EYADEMA to step down

and    put     Mr.      NATCHABA 3      in    the     presidency        according     to     our

constitution.”           

      Djondo      stated    that    the

       3
       Natchaba Ouattara was the president of the National
Assembly at the time of Eyadema’s death. See United Nations High
Commissioner for Refugees, “World Directory of Minorities and
Indigenous        Peoples        –        Togo:        Overview,”
www.unhcr.org/refworld/publisher,MRGI,,TGO,4954ce5cc,0.html
(last visited October 26, 2012).

                                                19
march    was     on    February    20th.    

  she   was

“beaten savagely” by “RPT 4 militia loyal to Faure” for being “a

participant of that march.” 

directly to

[her] house” and “threat[ened]” her. 

hard for

me to live in that fear,” she explained, “so I left the country

before the April 24th election.” 

to a refugee

camp in Benin, and then came to the United States. See 

stay here for fear [of] persecution since the

Gnassingbe [were] still in the power.” 

cannot

go   back       to      my    country      because        we   have     a   hereditary

dictator[ship] that kills us morally and physically.” 

     On October 25, 2005, the Department of Homeland Security

(“DHS”) initiated removal proceedings, charging her with being

subject     to        removal     for   having     overstayed         the   visa.    See

Immigration and Nationality Act (“INA”) § 237(a)(1)(B), 8 U.S.C.

§ 1227(a)(1)(B). On September 20, 2006, Djondo appeared with

counsel     before       an     immigration      judge,    conceded     removability,

renewed her asylum application under INA § 208(a), 8 U.S.C. §

1158(a), and also requested withholding of removal under INA §

241(b)(3), 8 U.S.C. § 1231(b)(3), and CAT protection. As the


     4
       The Rassemblement du People Togolais (“RPT”) is Eyadema’s
party. See Background Note, supra note 2.


                                            20
Attorney      General    concedes,      at     the    hearing      Djondo       “testified

consistently with her written affidavit.” Gov’t Br. at 4; see

J.A. 534-618 (hearing transcript). She explained that she had

been involved with the CDPA “from the beginning,” although she

did not “officially” join the party until 2002, at which point

she “got a membership card.” 

explained that she

participated      in     a     march    on    February       20,    2005,       with   the

“opposition components.” 

“We were requesting

the . . . reinstallation of the constitution, that Eyadema’s son

[Faure] cannot become just the president after the death of his

father,” she testified. 

was wearing the

red t-shirt,” she explained, 

“[i]t means

that the country is in danger”; that was “our way to show our

discontent,” 

   testified       that    the       march    began    as     a     peaceful

demonstration, but the RPT militia “made it a point to attack

anyone wearing a red shirt coming from that demonstration.” J.A.

591-92, 603. She knew that they were RPT militiamen because they

were her neighbors, and they also wore “t-shirts with the RPT

logo.” 

They chased her, “attacked” her, and

beat    her     with    “big    sticks,”          clubs    and   bats,    leaving      her

unconscious. 

found her and brought her to




                                             21
her cousin’s home. 

Her cousin took her to a

hospital for medical treatment. 5

       The immigration judge specifically asked her the date of

the march:

       Q:         When were you beaten up?

       A:         I was beaten up on February 20th.

       Q:         February 20th?

       A:         February 20th.

J.A.       589.    The    date    of    the    march    became      crucial   because    DHS

counsel       pointed      out     to    the    IJ     that,   of    the   demonstrations

described in the State Department reports, none of them occurred

on     February          20.     The    judge        confronted      Djondo    with     this

information:

       There are some reports attached to your asylum papers,
       which tell me what was happening in Togo in February
       of 2005. One report talks about protesters and
       demonstrations in Lome. And the dates they give for
       those protests are February 9th, February 11th,
       February 12th and February 27th. . . . [T]hey say that
       the February 27th . . . march was a peaceful women’s
       march. . . . [T]he next report . . . refers to
       demonstrations that were organized for February 23rd,
       2005. And it refers to a February 27th, 2005, march
       organized by women’s organizations. And it says that
       the organizers of this march, organized by the women’s

       5
       J.A. 592. Djondo did not produce records of her medical
treatment. When asked why, she explained that, when she went to
the hospital on “February 20th,” she “was given only the first
care and prescription. I received no other document.” 

  explained that she did not try to acquire them later
because she “[did] not know that the proceeding would require
the presentation of these documents.” 

      organizations, asked the population to dress in red.
      And I don’t see any reference to a February 20th,
      2005, women’s march. Do you know why that would be in
      two different reports?

responded:

      Yeah.   I  took   part  in   the one   requesting  the
      demonstrators to wear red shirts. And when the attack
      took place, maybe I can’t remember exactly the dates.
      But the one requesting the participants to wear red
      shirts is the one I took part in. . . . [A]fter what’s
      happened to me, I can’t remember exactly the date. I
      know that it was in the 20’s, and I was saying the
      20th. But I took part in the one [where] we were
      requested to wear red shirts.

testified that, after the march, she was unable to

go home because she was scared the militia would arrest or kill

her. J.A. 596. In fact, she later learned that the RPT militia

did   go   “back    to   the   house    .    .     .    to   look    for   [her].”    

  to    .    .     .    leave   the    country,”     but

“unfortunately, [her] passport [had] expired.” 

stayed with her cousin until she was able to acquire a passport,

and left the country for Benin approximately two months later,

on April 14, 2005. 

595. Djondo’s husband and

children also were forced to leave their home, and fled to Benin

sometime after Djondo did. 

  testified       that    she    is       afraid   to    return   to    Togo

because she is “still scared that [she’ll] be arrested.” J.A.

588. Her sister who remained in Togo told her “[t]hey continue


                                         23
looking for [her].” 

explained, “If I go back

to Togo, they will kill me immediately. And I’m, I’m scared. I’m

afraid.” 

“if I go back [and] they find out that

I came to the United States and applied [for] asylum, . . .

they’re going to arrest me or kill me.” 6

     C.    Djondo’s Documentary Evidence

     Djondo also submitted documentary evidence to corroborate

her affidavit and oral testimony about her involvement in the

CDPA and the February 2005 women’s march:

     (1)   two   photographs   of   the   demonstration   in   which    she

           claimed to have participated, J.A. 703-04;

     (2)   a CDPA Membership Card, confirming her membership in

           CDPA, 

     (3)   the   attestation   of    CDPA   Membership    from   a     CDPA

           official, stating that Djondo is “is a very active

           member in the affairs of the party,” 

also submitted reports from the State Department and

Amnesty International about the February 2005 march. The State



     6
       J.A. 599. The DHS lawyer asked why Leopold Gnininvi, a
prominent leader, could stay in Togo but conditions were too
dangerous for Djondo to return. 

explained,
“[T]hey who are the top leaders of the opposition parties – they
don’t harm them. . . . [T]hey always focus on people around,
around them.” 

asked why another sibling can
safely live in Togo. 

not at all involved in
political activities,” Djondo explained. 

  Country   Report   for     Togo   described     the

demonstration as follows:

       On February 27, security forces forcefully dispersed a
       peaceful women’s march, beating persons with batons
       and firing tear gas into crowds. Five persons were
       killed in the course of this demonstration . . . . All
       of the bodies had contusions consistent with having
       suffered beatings from batons.

J.A.   713.    Amnesty   International   provided   more   detail   in   its

report, “Togo, A High Risk Transition”:

       On the following Sunday, 27 February 2005, a march
       organised by women’s organisations took place in Lomé.
       The organisers asked the population to dress in red,
       to symbolise that democracy was in danger in Togo.
       There were clashes between security forces and several
       demonstrators at the end of the demonstration. The
       security forces chased some demonstrators into the Bè
       neighbourhood, a traditional opposition stronghold. It
       seems that these demonstrators erected barricades and
       that clashes took place right through until the
       following morning, when the security forces began
       indiscriminate    repression   of   people    in   the
       neighbourhood, forcibly entering homes, beating up
       anyone in their way and, according to some reports,
       making threats of rape. . . .

       The next day, five bodies, including a child aged
       around 10, were found in Bè Lagoon. . . .
       On 28 February, the security forces forcibly entered
       private homes and hit residents in a brutal and
       indiscriminate manner. . . .

J.A. 737-38 (emphases omitted). As discussed below, the only

inconsistency between these reports and Djondo’s testimony was

the date of the march (February 20 vs. February 27).

       D.     Djondo’s Other Evidence

       Djondo presented other evidence in support of her petition:


                                    25
      Testimony of Lily Massan Gnininvi (J.A. 557-84) – Djondo’s

half-sister Lily Massan Gnininvi testified about Djondo’s active

participation in the CDPA and personal background, as well as

Djondo’s participation in the February 2005 march. J.A. 560-62.

Although Gnininvi was not with Djondo when Djondo was beaten,

Gnininvi described the demonstration in detail, and testified

that she saw Djondo at the demonstration. 

also testified that she heard from another sister that Djondo

had   been    beaten.    

   Thus,    her    testimony       was

entirely     consistent       with   Djondo’s.       She   did,    however,      testify

that the march was February 20, not February 27 as reported by

the State Department and Amnesty International.

      Affidavit of Lily Massan Gnininvi (J.A. 651) – This was

consistent with Gnininvi’s testimony.

      Written statements by Togolese citizens – Djondo submitted

six   written,   unsworn       statements      from    people       who   stated      that

Djondo participated in the red-shirt rally and was, for example,

“savagely     beaten”     because     the     RPT    militia       “saw   her    in    red

attire.” J.A. 665. All but one of the statements did not provide

a   precise    date     for    the   rally.    See     

Akossiwa Odile ); 

Ama Eyako); J.A. 660-63

(Gayegnigogo Kuevidjin); 

Akoétey Kossi);

Ablavi). The one person who included a



                                         26
precise date stated that the march took place on February 20,

2005. See 

Semeho Komla).

      E.        Agency Proceedings

      At    the      hearing       before   Immigration     Judge      Lisa    Dornell,

Djondo argued that she satisfied the requirements for asylum.

Although the Attorney General did not dispute most of the facts,

he argued that Djondo’s claim failed because “it’s difficult to

believe that five years later that she is in danger because of

some mass march activity that she was involved in such a long

time ago.” J.A. 616.

      The       IJ   orally    rejected      Djondo’s     claim   for      asylum   and

withholding of removal. This decision relied, however, on her

earlier decision to exclude from evidence all of the written

statements that Djondo submitted as well as the CDPA membership

card,      on    the   ground       that    the   certificates        of   translation

provided for those documents did not state that the translator

was competent to translate the document and that the translation

was true and accurate. J.A. 514. Having excluded that evidence,

the   IJ    explained,        in    pertinent     part,   why   she    was    rejecting

Djondo’s claims:

      [T]his is not a case in which the respondent can rely
      on her testimony alone. That is because her testimony
      concerning the events which led to her departure from
      Togo is not consistent [with the State Department and
      Amnesty International reports]. It is not plausible in
      light of information on country conditions. . . .


                                            27
     [I have] considered the respondent’s explanation that
     she simply forgot the date or that she could not
     remember the date. That explanation is not persuasive
     in light of the fact that that is the date that the
     respondent has written in her application. . . .

     Even more significant is the fact that [Gnininvi]
     insisted that [the march] occurred on February 20,
     2005. There is no explanation as to, even if the
     respondent were mistaken, why her witness would come
     in and swear under oath that it was on February 20,
     2005, that she saw the respondent participating in
     this   demonstration  which ultimately  led  to  her
     decision to flee Togo.[7]

     So, the respondent cannot rely on her testimony . . .

IJ also noted that, even if the excluded

evidence were admitted, it “would not have been deemed by the

Court to be credible” because they also contained “conflicting

information about the demonstration.” 

     Djondo appealed to the BIA, which reversed in a per curiam

opinion    on   two   grounds.   First,   the   BIA   held   that   the   IJ

improperly excluded most of Djondo’s witness statements, because
     7
         As Djondo notes:

     The Immigration Judge’s reliance on Ms. Gnininvi’s
     failure to explain why she testified that the
     demonstration was on February 20 is puzzling, given
     that no one asked Ms. Gnininvi to provide such an
     explanation. Ms. Gnininvi testified before Ms. Djondo,
     and the discrepancy in dates was not raised by the
     Immigration Judge until she questioned Ms. Djondo. See
     J.A. 603-04. Nor did counsel for the DHS ever ask Ms.
     Gninninvi to explain the difference.

Pet. Br. at 24.
     8
      As mentioned, this was incorrect; only one of the written
statements included the February 20 date.

                                    28
the   translator       certificates       “substantially      complied”      with   the

applicable regulation, 8 C.F.R. § 1003.33. J.A. 143. Second, the

BIA   held    that     the    IJ   “failed       to    analyze   the    respondent’s

applications     under       the   REAL    ID    Act    of   2005.”    

for the IJ to reconsider her credibility finding in

light of the previously excluded documentary evidence, and under

the REAL ID Act. 

    remand,     Djondo     moved       for    permission      to    have   her

application considered de novo. See J.A. 101. The IJ denied the

motion,      instead    ruling     on     the    application     without       hearing

additional evidence. 

the merits, the IJ

again denied Djondo’s claims:

      [T]he Court observes that previously-excluded evidence
      supports the respondent’s claim that she was a member
      of the CDPA. . . .

      However,   even   considering  the   previously-excluded
      evidence, and taking into consideration the totality
      of the circumstances as the Real ID Act requires, the
      respondent has not advanced a claim that is credible.
      This is an adverse credibility claim. There is a
      material discrepancy which relates to the respondent’s
      claim of having been arrested and detained during the
      course of a march that she described as having
      occurred on February 20, 2005. This is a case, in
      short, in which the respondent’s claim is not
      consistent with evidence that she has provided on
      country conditions. This is a case in which the
      respondent’s    testimony   is   not   consistent   with
      testimony provided by her own witness[.][9] [T]he Court
      notes that in the respondent’s filings subsequent to

      9
      This observation is wrong. Gnininvi testified to the same
(mistaken) date of the march as did Djondo: February 20, 2005.

                                           29
      the remand, she notes that asylum applicants come to
      the Court suffering from some degree of trauma.
      However, the Court observes that notwithstanding the
      trauma that applicants for asylum protection may have
      suffered, they still are responsible for carrying
      various legal burdens. They have to file their asylum
      application in a timely fashion. They have to present
      evidence that is credible, direct and specific.

      And   the   Court   observes   that   in   this   case,
      specifically, there is certainly no evidence to show
      that the respondent has been so traumatized that she
      cannot testify, cannot be expected to testify, in a
      manner that is consistent with her own evidence. . . .

   added).      The   IJ   then   addressed   the

previously    excluded    documents,        but   discounted    their   weight,

stating that Gandziami-Mickhou v. Gonzales, 

(4th

Cir. 2006), “calls into question the probative value of such

unsworn documentation.” 

these reasons, the IJ

concluded, Djondo “has not shown with her evidence that she,

herself, was involved in that activity [the February 27, 2005,

women’s    march]   at   the    time   that   her   information    on   country

conditions says those activities occurred.” 

appeal, the BIA affirmed. First, the BIA affirmed the

IJ’s adverse credibility determination, finding it complied with

the REAL ID Act:

      Contrary to the respondent’s assertion that it was
      only her faulty recollection of one date that formed
      the   basis   of   the   Immigration   Judge’s   adverse
      credibility finding, it was the faulty date repeated
      in her    testimony,   her   written  application,   her
      witness’s testimony, and her various corroborating
      letters that concerned the Immigration Judge. . . .


                                       30
      When   the   respondent   was   confronted   with  this
      inconsistency, she stated she simply forgot the date
      or could not remember the date, which was not a
      convicting explanation to the Immigration Judge. The
      Immigration Judge was not persuaded that [Djondo]
      simply forgot or could not remember when this was also
      the date in her written application, the date her
      witness testified she saw the respondent participating
      in the demonstration that led to her arrest and
      decision to flee Togo, and the date reflected in her
      other   allegedly   corroborating   letters   that  the
      respondent appeared at this rally on February 20,
      2005, and fled from the militia on that day.

J.A. 4 (citations to record omitted). Second, the BIA affirmed

the IJ’s decision that Djondo’s supporting documentation also

was   insufficient   to   satisfy    her   burden   of   showing    past

persecution, a reasonable likelihood of future persecution on

account of a protected ground, or a clear probability that her

life or freedom would be threated on account of a protected

ground if she were to return to Togo:

      [T]he political membership document and letter from
      her   political  organization   do    not    describe   any
      incidents of harm or persecution suffered by the
      respondent in Togo. The Immigration Judge thought that
      had the writer of the letter known of instances of
      persecution and harm that it would have been reflected
      in the letter. Furthermore, the photos and other
      documentation that she produced were insufficient to
      bolster her already questionable version of events.
      For   instance,  her   pictures   did    not    necessarily
      corroborate the time or place of the event recorded
      and many of her documents were not under oath. See
      Gandziami-Mickhou v. Gonzales, 

[, 354]
      (4th Cir. 2006) (discussing the limited probative
      value of unsworn documentation).

to record omitted). Accordingly, the BIA

found no “clear error in the determination that the respondent

                                    31
was not credible,” and thus that she “failed to carry her burden

for   demonstrating   eligibility    for   asylum   or   withholding   of

removal.” 

affirmed the IJ’s denial of Djondo’s

claims for asylum, withholding of removal, and CAT relief.

      Djondo timely filed a petition for review.



                                    II.

                                    A.

      We recently described the standards for asylum, mandatory

withholding of removal, and protection under CAT:

           Under the Immigration and Nationality Act (the
      INA), the Attorney General has discretionary authority
      to “grant asylum to an alien . . . if . . . the
      Attorney General determines that such alien is a
      refugee within the meaning of section 1101(a)(42)(A)
      of [Title 8].” 8 U.S.C. § 1158(b)(1)(A). Section
      1101(a)(42)(A) in turn defines the term “refugee” as
      “any person who is outside any country of such
      person’s nationality . . . and who is unable or
      unwilling to return to, and is unable or unwilling to
      avail himself . . . of the protection of, that country
      because of persecution or a well-founded fear of
      persecution on account of . . . membership in a
      particular social group. . . .” 

burden of proof is on the applicant [for asylum]
      to establish that the applicant is a refugee, within
      the   meaning    of section  1101(a)(42)(A).”  

      10
        An asylum applicant “may qualify as a refugee either
because he or she has suffered past persecution or because he or
she has a well-founded fear of future persecution.” 8 C.F.R. §
208.13(b). Further, “[a]n applicant who demonstrates that [s]he
was the subject of past persecution is presumed to have a well-
founded fear of persecution.” Ngarurih v. Ashcroft, 

, 187 (4th Cir. 2004).


                                    32
Zelaya v. Holder, 

, 161 (4th Cir. 2012) (alterations

in original). In addition, an application for asylum is “deemed

to constitute at the same time an application for withholding of

removal.” 8 C.F.R. § 208.3.

     Unlike in the asylum context, if an alien qualifies
     for withholding of removal under the INA, the Attorney
     General cannot remove him to his native country. 

v. Ashcroft, 

, 367
     (4th Cir. 2004). “Withholding of removal is available
     under 8 U.S.C. § 1231(b)(3) if the alien shows that it
     is more likely than not that h[is] life or freedom
     would be threatened in the country of removal because
     of h[is] ‘ . . . membership in a particular social
     group . . . .’ ” Gomis v. Holder, 

, 359
     (4th Cir. 2009) (quoting 8 U.S.C. § 1231(b)(3)(A)),
     cert. denied, ––– U.S. –––, 

(2010).
     This is a higher burden of proof than for an asylum
     claim, although the facts that must be proven are the
     same. 

. Accordingly, an alien
     who cannot meet his burden of proof on an asylum claim
     under the INA necessarily cannot meet his burden of
     proof on a withholding of removal claim under the INA.
     

  at   161   (alterations   in   original).   Finally,

Djondo sought protection under the CAT, which

     pursuant to its implementing regulations, prohibits
     the United States from returning any person to a
     country where the person has demonstrated that it is
     more likely than not that he will be tortured if
     returned to such country [citation omitted]. For
     purposes of obtaining protection under the CAT in the
     United States, torture is defined as:

           any act by which severe pain or suffering,
           whether physical or mental, is intentionally
           inflicted on a person for such purposes as
           obtaining from him or her or a third person
           information or a confession, punishing him
           or her for an act he or she or a third

                                     33
             person has committed or is suspected of
             having   committed,   or   intimidating   or
             coercing him or her or a third person, or
             for any reason based on discrimination of
             any kind, when such pain or suffering is
             inflicted by or at the instigation of or
             with the consent or acquiescence of a public
             official or other person acting in an
             official capacity.

     8 C.F.R. §§ 208.18(a)(1) (Department of Homeland
     Security regulation), 1208.18(a)(1) (Executive Office
     for Immigration Review regulation). A public official
     acquiesces to torture if, “prior to the activity
     constituting torture, [the public official] ha[s]
     awareness of such activity and thereafter breach[es]
     his or her legal responsibility to intervene to
     prevent such activity.” 

     testimony of the applicant” for withholding of removal
     under the CAT, “if credible, may be sufficient to
     sustain the burden of proof without corroboration.”
     Id. § 1208.16(c)(2).

-62 (footnotes omitted). “[T]his standard

for the CAT is independent from the standard for determining

asylum, and an adverse credibility finding alone cannot preclude

protection under the CAT.” Gandziami-Mickhou v. Gonzales, 

, 354 (4th Cir. 2006) (citing 

).

                                       B.

     Here,     the   IJ    rejected   Djondo’s    claims      because,   to   the

extent    that    Djondo    was   relying    on   her   own     testimony,    the

testimony was not credible, and to the extent that Djondo was

relying   on     other    evidence,   that   evidence,     in    light   of   the

antecedent adverse credibility finding, also was not sufficient

to sustain her burden of proof. Djondo argues that we should


                                       34
reverse the BIA’s decision for several reasons, including an

argument that the IJ committed legal error and/or clear factual

error in making the          adverse credibility finding. The majority

sustains the adverse credibility determination; I am persuaded

to the contrary.

                                         1.

     “The testimony of the [asylum] applicant, if credible, may

be   sufficient      to      sustain     the     burden   of      proof   without

corroboration.” 8 C.F.R. § 208.13(a). The REAL ID Act, which

applies   to   all    applications       for     asylum   and   withholding    of

removal   filed      after     May     11,     2005,   provides     guidance   to

immigration judges in making credibility determinations:

     Credibility determination[:] Considering the totality
     of the circumstances, and all relevant factors, a
     trier of fact may base a credibility determination on
     the   demeanor,  candor,   or   responsiveness   of   the
     applicant or witness, the inherent plausibility of the
     applicant’s or witness’s account, the consistency
     between the applicant’s or witness’s written and oral
     statements (whenever made and whether or not under
     oath, and considering the circumstances under which
     the statements were made), the internal consistency of
     each   such   statement,   the   consistency    of   such
     statements with other evidence of record (including
     the reports of the Department of State on country
     conditions), and any inaccuracies or falsehoods in
     such   statements,   without   regard   to   whether   an
     inconsistency, inaccuracy, or falsehood goes to the
     heart of the applicant’s claim, or any other relevant
     factor[.]

8 U.S.C. § 1158(b)(1)(B)(iii) (emphasis added).




                                         35
      We   review        credibility        determinations             to    ensure    they   are

supported by substantial evidence, just as we did prior to the

passage of the REAL ID Act. Camara v. Ashcroft, 

,

367 (4th Cir. 2004); see also Shrestha v. Holder, 

,

1 1042 (9th Cir. 2010) (“The REAL ID Act did not strip us of our

ability      to    rely       on    the    institutional           tools       that    we     have

developed,        such    as       the    requirement           that    an    agency    provide

specific and cogent reasons supporting an adverse credibility

determination, to aid our review.”). Moreover, agency findings

of fact, including credibility determinations, “are conclusive

unless any reasonable adjudicator would be compelled to conclude

to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also INS v.

Elias-Zacarias, 

, 481 & n. 1 (1992). “This deference

is   broad      but     not    absolute:         an   IJ    who        rejects    a    witness’s

positive       testimony       because      in    his      or    her     judgment      it   lacks

credibility should offer a specific, cogent reason for his [or

her] disbelief.” Tewabe v. Gonzales, 

, 538 (4th Cir.

2006)    (alteration          in    original).          Moreover,            because    the   BIA

affirmed the IJ’s decision and added its own discussion of the

bases    for      its    decision,        “the    factual        findings        and   reasoning

contained in both decisions are subject to judicial review.”

Niang v. Gonzales, 

, 511 n.8 (4th Cir. 2007); see

also Gandarillas-Zambrana v. BIA, 

, 1255 (4th Cir.

1995).

                                                 36
                                        2.

     As    explained    above,    the    IJ    found     that    Djondo     was   not

credible based solely on the one-week inconsistency between, on

the one hand, the date of the red-shirt march in her testimony,

her sister’s testimony, and one of the written statements; and,

on the other hand, the date of the march contained in the State

Department and Amnesty International reports. The IJ made no

findings with respect to the demeanor, candor, or responsiveness

of Djondo or Gnininvi.

     Djondo   argues     that    in   relying    on    the    one-week    error   to

support the adverse credibility finding, the IJ violated the

REAL ID Act (in two ways) as well as the general requirement

that an adverse credibility finding be supported by substantial

evidence    and   a    “specific”     and     “cogent”       explanation.    First,

Djondo argues that although the REAL ID Act does not require “an

explicit discussion of each factor” listed in the Act, an IJ

must “consider[] . . . all relevant factors, and not just the

ones that support an adverse credibility determination.” Pet.

Br. at 42 (emphasis in original). This the IJ failed to do, she

argues, because notwithstanding the IJ’s and BIA’s statements

that they considered “the totality of the circumstances,” J.A.

4, the IJ’s opinion shows that she “relied solely on the one-

week mistake” to find Djondo incredible, “without considering or

balancing the many relevant positive factors identified in the

                                        37
REAL ID Act.” Pet. Br. at 34. Those “positive factors,” she

argues, are the following:

      •    “the inherent plausibility of the applicant’s or witness’s

           account”      –   nothing    about       Djondo’s      testimony   that   she

           participated in and was beaten after the red-shirt march

           was    implausible,     especially        since     the   evidence   of   her

           membership in the CDPA and her leadership of its women’s

           wing was uncontested;

      •    “consistency between the applicant’s or witness’s written

           and oral statements” – neither the IJ nor the BIA (nor the

           Attorney      General   on    appeal)       has     identified     any    such

           inconsistency;

      •    “internal consistency of each such statement” – all the

           statements are internally consistent; and

      •    “the consistency of such statements with other evidence of

           record (including the reports of the Department of State

           on    country     conditions)”       –    all     of   Djondo’s    evidence,

           including     her   testimony,    was      almost      entirely consistent

           with the country reports; the only inconsistency was as to

           the date.

    of       all   the     relevant   statutory

factors,” she argues, “compels a finding that [her] testimony

and supporting evidence was credible.” 

         Second, Djondo argues, even if the IJ could limit the basis

for the adverse credibility finding to the one-week mistake, or

if we are assured that the IJ did “consider” all the positive

“factors,” the IJ and BIA still violated the REAL ID Act because

they failed to explain why the one-week mistake was material --

i.e., why the error was “relevant” to the question of whether

Djondo had failed to credibly show that she had suffered (and

would be likely to suffer) persecution. See Pet. Br. 48–50.

         For the same reasons, apart from any requirements imposed

by the REAL ID Act, Djondo argues the IJ and BIA also violated

the      separate,   preexisting       requirements   that     (1)   an   adverse

credibility determination be “supported by substantial evidence,

.    .   .   i.e.,   evidence   that    is    ‘reasonable,     substantial,   and

probative . . . on the record considered as a whole,’” 

(quoting 

), and

(2) that the IJ and BIA offer “specific, cogent reason[s]” for

an    adverse    credibility    determination.      

Figeroa v. INS, 

, 78 (4th Cir. 1989) (alteration in

original)). Pet. Br. 46.           As we explained in a pre-REAL ID Act

case, an IJ must “demonstrate that he or she reviewed the record

and balanced the relevant factors and must discuss the positive

or adverse factors that support his or her decision.” Zuh v.




                                         39
Mukasey,   

,    509     (4th    Cir.    2008)       (emphasis     in

original). 11

     Here, Djondo argues, the one-week inconsistency between her

evidence   and   the    country       reports    neither      was     substantial

evidence   nor   constituted      a   cogent    reason       for    finding     that

Djondo’s   testimony    of   persecution       could   not    be    believed.     As

Djondo explains:

     [T]he Board provided no reasons, much less cogent
     reasons, for concluding that the one week mistake in
     dates affected the credibility not only of Ms. Djondo
     and Ms. Gnininvi, but also of the six persons who
     submitted corroborating statements, five of whom did
     not mention the exact date of the demonstration.
     Unlike Dankam and Camara, in this case the Board did
     not   attach  any   particular   significance  to   the
     incorrect date, and it did not give any explanation as
     to why the mistake was significant. Nor is there any
     evidence   in  the   record,   much   less  substantial
     evidence, explaining why any significance can be
     attached to Ms. Djondo’s mistaken testimony that the
     demonstration took place on February 20 instead of
     February 27 . . . .

     The Board’s implicit, but unstated, conclusion is that
     Ms. Djondo, Ms. Gnininvi, and the six persons
     submitting written statements in support of Ms. Djondo
     were all lying when they stated that Ms. Djondo
     participated in the red-shirt demonstration and was
     beaten up by government militia members afterwards.
     Similarly, the Board must have concluded that the
     detailed descriptions of Ms. Djondo’s past political
     activities, the red-shirt demonstration, and the
     Togolese militia's continued search for Ms. Djondo
     after the demonstration are all fabricated.

     11
       Although Zuh was issued after 2005, the Act did not apply
to the petitioner’s claim because his application for asylum was
filed before May 11, 2005. See 

.


                                       40
     Such a conclusion, however, simply does not follow
     from the fact that Ms. Djondo and Ms. Gnininvi were
     mistaken by one week as to the date of the
     demonstration.   Instead,  the   Board’s (and   the
     Immigration Judge’s) conclusion is based on nothing
     more than speculation.

Pet. Br. at 48-49.

     The Attorney General argues that the IJ and BIA did not

violate any of these requirements, contending that,

     [d]espite the importance to her case of Petitioner’s
     purported beating after the red shirt rally – the only
     incident in which she claimed she was injured in Togo
     – Petitioner failed to accurately state a key fact
     about the rally – the date on which it took place. She
     failed to provide an accurate narrative of the event,
     which country conditions reports reveal occurred on
     February 27, 2005. . . . . The fact that Petitioner
     testified in a manner inconsistent with the country
     conditions documents, which she proffered in support
     of her claim, constituted a specific, cogent reason
     for the agency to disbelieve her claim.
     . . .
     [Moreover,] [t]he agency did not err when rejecting as
     unpersuasive Petitioner’s explanation that she simply
     forgot the date, given that the “February 20, 2005”
     date was repeated fifteen times during the merits
     hearing, appeared in multiple corroborative documents,
     and was reiterated by both testifying witnesses. . .
     . Her argument fails to explain how three different
     individuals [Djondo, Gninvini, and Semeho Komla Edoh]
     each separately forgot the date, and coincidentally
     mis-remembered   the  event   as  having  occurred  on
     February 20.

Gov’t Br. at 25-27 (citations to record omitted).

     The   Attorney   General    also   seeks   to    buttress     the   BIA’s

decision   by   providing   an   explanation    for    why   the    one-week

difference might be significant. As stated, the State Department


                                   41
and Amnesty International reports describe a red-shirt march on

February 27; Djondo, Gninvini and Edoh described the march they

participated in as having occurred on February 20. Djondo and

Gninvini         also   testified       (albeit       somewhat      ambiguously)       and

Djondo’s husband stated (very ambiguously) that the purpose of

the march was to call for the resignation of Faure, the former

dictator’s son. 12 By the time the red-shirt march documented by

Amnesty International and the State Department took place on

February 27, Faure had already ceded power to Abass Bonfoh, the

first vice-president of the National Assembly. J.A. 724. The

Attorney General argues that this fact further supports the IJ’s

adverse      credibility        determination        because     “in    order    for   the

agency      to    accept    Petitioner’s       explanation        she    had   known   the

march      took    place   ‘in    the   20’s’       and    had   merely   confused     the

February 20 date for February 27, the agency would also have to

discount volumes of proffered evidence and testimony claiming

the     protesters         at    the    red        shirt    rally       were    demanding



      12
       See J.A. 564 (Gninvini describing the march as “people
trying to call for a march . . . so he can step down”); 590
(Djondo describing the purpose of the march as “requesting the,
the reinstallation of the constitution, that Eyadema’s son
cannot become just the president”); 623 (Djondo describing in
her affidavit that the “women of the opposition organized a
march to ask the son of late EYADEMA to step down and put Mr.
NATCHABA in the presidency”); 653 (statement of Agbemehe Akoétey
Kossi, Djondo’s husband, that Djondo had “challenged the regime
by taking part to the march against Faure GNASSINGBE”).

                                              42
[Gnassingbé’s]    resignation.”     Gov’t   Br.    at   29-30    (citing       J.A.

564, 590, 623, 653).

                                      3.

      As best as I can discern, the IJ and BIA based the adverse

credibility determination on the following reasoning: Djondo and

her corroborating evidence discloses that she participated in a

red-shirt march on February 20, 2005, and was beaten on that

day; the only red-shirt march mentioned in the country reports

took place on February 27, 2005; therefore, she has not proven

past persecution. Based on the record here, I am persuaded that

this reasoning was inadequate and fatally lacks cogency.

      There are, essentially, three possible interpretations of

Djondo’s evidence that might have supported the IJ’s decision.

First, the IJ might have believed Djondo that she participated

in   the   February   27   march    (the   one    described     by    the     State

Department and Amnesty International), and even that she was

beaten, but disbelieved Djondo’s testimony that she was beaten

because of her political views and/or that she fears she would

be persecuted if she were to return to Togo. Second, the IJ

might   have   believed    Djondo   that   she   participated        in   a   march

sometime in February 2005, but disbelieved Djondo’s testimony

that she was beaten, or beaten because of her political views,

because of the date inconsistency between her evidence and the

country reports. Third, the IJ might have disbelieved Djondo

                                      43
entirely,    concluding    that       she     had   not    proven     that     she

participated in any political rally in February 2005.

     Conversely, there are at least two possible interpretations

of   Djondo’s   explanation     for     the    inconsistency.       As   stated,

Djondo’s explanation was that “maybe I can’t remember exactly

the date” but she knew that she “took part in the one requesting

the demonstrators to wear red shirts.” J.A. 604-05. First, this

could mean that she did participate in the February 27, 2005,

march, but failed (consistently) to recall the precise date of

the march. Second, her explanation could mean that there were

two red-shirt rallies in February 2005, one prior to February 25

(the date Faure stepped down) and one after. This is a perfectly

plausible    interpretation:    the    Amnesty      International     and    State

Department reports might not have been 100 percent comprehensive

in listing the dates on which opposition parties held rallies.

Interpreting the evidence this way would completely undercut the

basis for the IJ’s adverse credibility finding (and the BIA’s

affirmance    thereof).   It   would    also    undercut    the     government’s

post-hoc explanation that Djondo’s supposed one-week error was

significant because Faure stepped down prior to the February 27

march; if she was beaten on February 20, as she testified, then

she also would not have been lying that the purpose of the march

was to urge Faure to step down.



                                       44
       As this discussion illustrates, the IJ and BIA failed to

provide    a    cogent       explanation       for      why     they      were   discrediting

Djondo’s evidence. From the fact that the date in Djondo’s and

Gninivini’s         testimony      was     inconsistent            with    the   date    in   the

country reports, it does not necessarily follow that Djondo’s

credibility was undermined at all, let alone in a way fatal to

her claim of past political persecution. Moreover, the IJ did

not make any findings other than the one-week discrepancy that

might have supported the adverse credibility determination.

       Finally, the Attorney General’s post-hoc theory that the

one-week error was significant because Faure stepped down on

February       25    does    not     buttress      the    IJ’s       conclusion,        for   two

reasons. First, we cannot affirm an agency’s determination on a

ground the agency did not itself articulate. Am. Textile Mfrs.

Inst., Inc. v. Donovan, 

, 539 (1981). Second, even

if there was no red-shirt march on February 20, 2005, Djondo’s

testimony was far from clear that the march she claimed to have

participated in occurred before Faure ceded power on February

25. As the State Department report explains, Abass Bonfoh, who

took    over    on    February       25,    was    only       an    interim      President,     a

figurehead or placeholder. See supra n. 2. Faure remained the

“leader    of       the     ruling    party”      and     was       “a    candidate     in    the

announced presidential elections” to succeed Bonfoh. 

        was     retained       by    Faure           Gnassingbe     as   he

                                              45
continued to use the offices of the President while the interim

President operated from the National Assembly.” 

purpose of the February 27, 2005, protest might very

well have been to oppose the future re-ascension of Faure to

power. The record before us compels the conclusion that the IJ

and the BIA must address these perfectly plausible inferences

before summarily discrediting the claims here.



                                     III.

     For   these   reasons,    in    my   view,   the   lack   of   a   cogent

explanation for the adverse credibility finding requires that we

vacate   the   BIA’s   order   and   remand   for   further    proceedings.

Accordingly, I respectfully dissent.




                                     46