Uwase, Jeannette v. Ashcroft, John ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3676
JEANNETTE UWASE,
Petitioner,
v.
JOHN ASHCROFT, Attorney General
of the United States,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A77 819 928
____________
ARGUED SEPTEMBER 3, 2003—DECIDED NOVEMBER 21, 2003
____________
Before POSNER, KANNE, and EVANS, Circuit Judges.
KANNE , Circuit Judge. Jeannette Uwase seeks review of
a removal order issued by the Board of Immigration
Appeals (“BIA”) summarily affirming the Immigration
Judge’s (“IJ”) denial of Uwase’s asylum application, petition
for withholding of removal, and request for relief under the
Convention Against Torture Act. Because the IJ’s adverse
credibility determinations were not based on substantial
evidence and because the IJ gave undue weight to Uwase’s
alleged lack of corroborating evidence, we vacate the
removal order and remand Uwase’s case for rehearing.
2 No. 02-3676
I. History
Uwase, a native of Rwanda, was fourteen years old when
the former Rwandan president died in an April 1994 plane
crash. Following the president’s death, members of a Hutu
militia, known as the Interahamwe, launched an ethnic
cleansing campaign against Tutsi Rwandans and those with
mixed Hutu-Tutsi tribal heritage. Tutsi rebel soldiers,
called the Rwandan Patriotic Front (“RPF”), rose up to meet
the Interahamwe, resulting in civil war.
Prior to the war, Uwase lived in the capital city, Kigali,
with her parents and seven siblings. Her father, a promi-
nent Hutu businessman, had married a Tutsi woman; thus,
Uwase and her brothers and sisters were of mixed ethnicity.
When the violence broke out and they learned they were
targeted for extermination, the family fled Kigali, believing
they could not hide their identities because of the father’s
prominence and Rwanda’s small size. In July 1994, after
moving from city to city in the hope of escaping the fighting,
Uwase’s parents heard on the radio that the war was over
and that it was safe for people to return to their homes.
Uwase and her older sister, Francine Uwamahoro, were too
frightened to go back, but her parents left with the six
younger children. Uwase and her sister fled Rwanda for the
refugee camps in the Democratic Republic of Congo
(“DRC”).
Once in the DRC, the sisters moved from camp to camp in
search of safety. Because of their mixed ethnicity, they
struggled to gain acceptance in the camps largely filled with
Hutus seeking protection from the RPF. At some point, the
sisters were separated. Uwase suffered various deprivations
during the two years she spent in the camps, and was
ultimately herded back to Kigali when her camp was
attacked by RPF soldiers in October 1996.
In Kigali, the RPF detained the sixteen-year-old Uwase in
a collection center. There they interrogated her due to her
No. 02-3676 3
mixed ethnicity and because she was found in a Hutu
refugee camp. They accused her of participating in the
Interahamwe’s 1994 genocide and subjected her to abuse,
including putting her feet in very cold water, tying her
hands and legs, threatening her with violence, and with-
holding food. They ultimately released her in December
1996, due in part to her young age.
Upon release, Uwase found her way back to her family
home. There she discovered her family gone and RPF sol-
diers occupying the house. Uwase testified that the soldiers
at first seemed friendly, and allowed her to sleep in what
used to be her room until she could find a place to go. Later
that night, though, two soldiers woke her, raped her at
gunpoint, and beat her. They accused her of taking part in
the genocide, as they had discovered she was part Hutu.
Afterwards, they confiscated her identification papers and
left her bleeding at a bus station, threatening her with
death if she told anyone what they did. According to Uwase,
the soldiers took her identification papers because if she
was found without them, she would be accused of being a
member of the Interahamwe and killed.
Uwase made her way from the bus station to the home of
her mother’s friend, Frida Umutoni. Frida allowed Uwase
to live with her in Kigali and helped her to enroll in
secondary school. The two also sought to bring the rape to
the attention of the authorities, but, according to Uwase,
none would act for fear of retribution. At some point after
coming to live with Frida, Uwase was reunited with her
older sister, Francine. They never discovered the fate of the
rest of their family, except that Frida told them their father
was killed in prison.
Uwase lived with Frida for two years until Frida and
another family friend living in the United States, Jean
Ntakirutimana, helped Uwase and her sister Francine come
to America to study English. The sisters entered the U.S. in
4 No. 02-3676
December 1998 on student visas to attend the South Bend
English Institute. Uwase, now nineteen, overstayed her
student visa, resulting in the removal proceedings and her
asylum application. She testified before the IJ that she
fears returning to Rwanda because she believes she will be
subjected to further persecution due to her mixed ethnicity
and imputed political opinion. She also fears retribution
from government soldiers because she sought to prosecute
them for raping her.
The IJ denied Uwase’s application. Although he found
Uwase’s request for asylum plausible and reasonable based
on evidence of the country conditions in Rwanda, he did not
find Uwase’s testimony internally consistent or persuasive.
The IJ concluded that she did not meet her burden of
proving she was subjected to past persecution; specifically,
he found that she did not establish that she is of mixed
Hutu-Tutsi tribal heritage.
Uwase appealed. The BIA affirmed the IJ’s determination
without opinion under its streamlining procedure. See 8
C.F.R. § 1003.1(a)(7) (formerly 8 C.F.R. § 3.1(a)(7)). Having
appropriately exhausted her administrative remedies,
Uwase now seeks review from this Court.
II. Analysis
In streamlined cases, the IJ’s decision becomes that of the
BIA for purposes of judicial review. Georgis v. Ashcroft, 328
F.3d 962, 966-67 (7th Cir. 2003). We apply the substantial
evidence standard when reviewing immigration court
decisions denying petitions for asylum and requests to
withhold deportation. Id. at 967. The BIA’s decision must be
affirmed if it is supported by “reasonable, substantial, and
probative evidence on the record considered as a whole.” Id.(quotations omitted).
No. 02-3676 5
Here, the bulk of the evidence consists of Uwase’s tes-
timony, much of which the IJ found to be incredible and
uncorroborated. Since it is Uwase’s burden to demonstrate
she qualifies for asylum, her failure to convince the IJ of the
truth of her claim doomed her case. See Krouchevski
v. Ashcroft, 344 F.3d 670, 673 (7th Cir. 2003). The IJ’s
credibility determinations are entitled to great deference,
and we are not at liberty to overturn the agency’s decision
“simply because we would have decided the case different-
ly.” Georgis, 328 F.3d at 967 (quotations omitted). Yet, “we
will not automatically yield to the IJ’s conclusions when
they are drawn from insufficient or incomplete evidence.”
Id. at 968. Further, an IJ’s credibility determination must
be supported by “specific, cogent reasons” that “bear a
legitimate nexus to the finding.” Krouchevski, 344 F.3d at
673 (quotations omitted). Corroborating evidence is es-
sential to bolster an otherwise unconvincing case, but when
an asylum applicant does testify credibly, “it is not neces-
sary for [her] to submit corroborating evidence in order to
sustain her burden of proof.” Georgis, 328 F.3d at 969
(citing 8 C.F.R. § 208.13(a) (“The testimony of the applicant,
if credible, may be sufficient to sustain the burden of proof
without corroboration.”)).
In denying Uwase’s application for failing to prove that
she suffered persecution because of her mixed Hutu-Tutsi
ethnicity, the IJ pointed to four alleged problems with the
internal consistency and persuasiveness of her testimony:
(1) her inability to explain a stamp on a letter from Frida
Umutoni; (2) testimony inconsistent with her Form I-20
documentation; (3) testimony inconsistent with her national
identity documentation; and (4) her failure to produce her
sister Francine as a witness. We disagree with the IJ’s
conclusions based on the record before us and discuss each
issue listed above in turn.
6 No. 02-3676
A. Letter from Frida
Uwase entered as an exhibit, without objection, a letter
from Frida in support of her asylum application. In the
letter, Frida, who still resides in Kigali, wrote that follow-
ing Uwase’s departure, Frida had been subjected to inter-
rogations by local police “to answer how I helped you to
escape thou [sic] you was ‘Interahamwe’ mixed of Hutu-
Tutsi.” (A.R. at 166.) Frida goes on to state that she later
found out the two soldiers who raped Uwase were involved
in the interrogations and that they feared Uwase’s return
in case she attempted to prosecute them. Id. Frida wrote:
“Please Jeannette don’t attempt to come back here to
Kigali, because I know for sure you will be killed. After the
death of your Father, I have been trying to locate the rest
of your family, including your loving Mother unsuccessful
[sic].” Id.The IJ found fault with the letter because it exhibited an
ink impression of a rubber stamp near the signature line.
The imprint of the rubber stamp bore the name of Uwase’s
father—Jean Bosco Gisagara—and the name of his beer
distribution business. Over the stamp someone scrawled
their signature or initials. At the hearing, Uwase could not
explain the presence of the stamp or how Frida may have
come to be in possession of it. Uwase was not asked to
identify the signature or initials, and no evidence was
presented on whose they might be. Uwase’s inability to
explain the stamp led the IJ to assume that someone from
Uwase’s family must have given Frida the stamp and that
Frida placed the stamp on the letter. From this, the IJ
deducted that Uwase’s father may not have been murdered
or her family scattered and lost, and deemed her story of
persecution based on her mixed ethnicity incredible. Thus,
the letter meant to corroborate Uwase’s otherwise consis-
tent testimony served to discredit it.
The IJ’s logic—that Uwase’s inability to explain a stamp
appearing on a letter sent from a third party in Kigali in-
No. 02-3676 7
dicates that her family may be intact and that she may not
be of mixed Hutu-Tutsi ethnicity and so did not suffer per-
secution—is simply too tenuous based on the record. See
Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002) (“Adverse
credibility determinations based on speculation or conjec-
ture, rather than on evidence in the record, are revers-
ible.”). In our review of the letter in question, we note that
the stamp bears no date and there is no testimony explain-
ing whether the stamping instrument was made prior to the
civil war or after. Even assuming, as the IJ did, that Frida
placed the stamp on the letter, there are many explanations
how she may have come to possess the stamp that do not
discredit Uwase’s story. Indeed, the IJ could have as easily
inferred that something terrible happened to Uwase’s
family; otherwise, the stamp would not have left their
possession. The IJ’s speculation regarding the significance
of the stamp, unsupported in the record, does not form a
valid, cogent reason for a negative credibility finding.
B. Form I-20 Testimony
Uwase testified before the IJ under repeated questioning
that Jean Ntakirutimana, her father’s friend, supported her
financially while in the United States. The IJ found this
testimony inconsistent with her Form I-20, which was part
of the paperwork necessary for her student visa. The Form
I-20 stated support would come from Rwanda, not the U.S.
The IJ also criticized Uwase for failing to present an
affidavit or other testimony from Jean so he could clear up
the discrepancy and otherwise confirm her story.
We consider Uwase’s allegedly conflicting testimony about
her source of support to be a minor inconsistency, if that,
having nothing to do with her claim that she feared for her
life in Rwanda. See Gao, 299 F.3d at 272 (stating that minor
discrepancies that do not “involve the heart of the asylum
8 No. 02-3676
claim” are not an adequate basis for an adverse credibility
finding); Diallo v. INS, 232 F.3d 279, 288 (2d Cir. 2000)
(holding that minor and isolated disparities in testimony
need not be fatal to credibility, especially when they do not
concern material facts).
We note that the record, which does not include a copy of
the Form I-20 in question, does not establish who filled out
the form, just that Uwase signed it. Based on the hearing
transcript description of the form, it appears to have been
in English, not in Uwase’s native language. (A.R. at 123.)
The offending information on the form appears to have been
contained in a pre-printed section regarding financial
support while studying in the U.S. A box reading “funds
from another source” was checked, with the words “sponsor
in own country” either pre-printed or written in. Id.When asked to explain why the form differed from her
testimony that Jean, who was not in her own country but in
America, would provide the support, Uwase recounted that
Frida accompanied her to the U.S. embassy to help her
obtain her student visa and assisted with responding to the
consular officer’s questions. Uwase testified, through an
interpreter, “I don’t really know how the financial arrange-
ments were made between Freda [sic] and Jean. However,
I remember that Freda [sic] told the embassy that accom-
modation was not a problem. Jean would take care of it.”
(A.R. at 125.)
Myriad reasons exist why the form came to represent
facts differently from those testified to repeatedly and con-
sistently by Uwase. There could have been a miscom-
munication or misunderstanding if a third party filled out
the form, or a mistranslation if Uwase filled out the form,
to name a few. The IJ did not thoroughly explore these, or
any other possible explanations for the inconsistency, cast-
ing doubt on his credibility determination. See Georgis,
No. 02-3676 9
328 F.3d at 968 (“[W]e will not automatically yield to the
IJ’s conclusions when they are drawn from insufficient or
incomplete evidence.”). More importantly, whether Uwase
received financial support from someone in the United
States or someone in Rwanda does not bear directly on
whether she suffered past persecution because of her mixed
ethnicity. Corroborating testimony from Jean was therefore
unnecessary with regard to this minor point and could not
have been anticipated by Uwase.
C. Identification Documents
Uwase testified about three different identification
documents. She stated that the soldiers who raped her in
December 1996 confiscated her camp identification papers
(“camp ID”). Uwase also testified that she received her
national identification card (“national ID”) sometime after
this event, but before she started secondary school in Kigali
in July 1997. She submitted a copy of her national ID as a
hearing exhibit. The third piece of identification discussed
was a card necessary for her to enroll in secondary school in
Kigali (“school ID”). Initially, Uwase testified that Frida
helped her to obtain the national ID, but later corrected
herself and stated that Frida helped her to obtain the school
ID. According to Uwase, she needed both the national ID
and the school ID to meet school eligibility requirements.
She did not submit her school ID in support of her applica-
tion. Thinking it unimportant, she left it behind in Rwanda.
The IJ found fault with Uwase’s testimony regarding the
identification documents because he did not understand
that the camp ID and the national ID were two separate
forms of identification, although the record is clear in this
regard. Uwase testified that since the soldiers took her
camp ID, she needed to get another identity card. Instead
of getting another camp ID, she traveled to Mugasera to
10 No. 02-3676
collect her national ID. She explained, quite lucidly, under
vigorous questioning from both the government and the IJ,
that she had been processed for the national ID in Novem-
ber 1996 while in the Kigali detention camp and was given
a camp ID to serve as identification while she waited for the
national ID’s issuance. (See A.R. at 130-132; 136-137.)
When released from the Kigali detention center in Decem-
ber 1996, she was in possession of the camp ID only, which
the soldiers then confiscated. (See A.R. at 127-128; 131-132;
150.) Instead of getting a duplicate camp ID to replace the
one taken by the soldiers, sometime prior to July 1997 she
traveled to her father’s hometown, Mugasera, where her
national ID was finally given to her. (See A.R. at 128, 135-
137.) According to Uwase, the government system in place
required her to travel to her father’s hometown in order to
collect the national ID. (See A.R. at 133, 135.)
The IJ, however, gleaned from Uwase’s testimony that
she was in possession of her national ID upon release from
the camp, and it was this document the soldiers took and
which she subsequently replaced. Noting the November 20,
1996 date on the supposed “replacement” national ID sub-
mitted in support of her asylum application, the IJ ques-
tioned how a document meant to replace one taken in
December 1996 could be dated November 1996. Apparently
because the IJ remained confused about the nature of the
ID taken from Uwase by the soldiers, he did not credit
Uwase’s explanation why she received the national ID in
1997 although it had a November 20, 1996 date. The IJ also
found that Uwase’s correction that Frida helped her obtain
the school ID as opposed to the national ID impugned
Uwase’s credibility. He noted that Frida failed to confirm
this story in the letter supplied in support of Uwase’s
asylum application or to send the school ID, which Uwase
left behind in Rwanda.
Although the IJ considered Uwase’s testimony about the
three identification documents contradictory, the record
No. 02-3676 11
reads quite clearly and does not support the IJ’s adverse
credibility finding. The IJ simply made a mistake of fact
with regard to finding that the soldiers took Uwase’s na-
tional ID. Further, we do not believe that Uwase’s correc-
tion that Frida helped her to obtain her school ID as
opposed to her national ID lessens the impact of Uwase’s
testimony, which is otherwise consistent. The IJ should not
have faulted Uwase for Frida’s failure to provide corroborat-
ing evidence about the various identification papers because
neither Uwase nor Frida could have anticipated that the IJ
would be confused by Uwase’s clear recitation of the
Rwandan government’s methods for tracking its people.
D. Francine’s Failure to Appear
Uwase’s sole witness on her witness list, her sister,
Francine Uwamahoro, did not attend the hearing due to a
stomach illness. Francine had been granted political asylum
in September 1999. Despite Francine’s inability to attend,
Uwase presented no evidence describing the basis for
Francine’s asylum request, just a copy of the government’s
letter recommending approval of Francine’s petition. At the
close of the hearing, the IJ twice, without prior warning,
tried to reach Francine at home via telephone so she could
provide corroborating testimony. No one answered. When
asked if her sister was supposed to be at home that day,
Uwase answered that they had not discussed her sister’s
plans and that it was possible she was out. Uwase’s attor-
ney asked for a continuance to produce Francine only after
the evidence had closed and it became apparent, through
the IJ’s repeated telephone calls, that the IJ considered
Francine’s testimony vital to Uwase’s case. In his decision,
the IJ accorded great weight to Uwase’s inability to produce
her sister in person or on the phone or to provide any
documentary evidence regarding Francine’s asylum claim.
12 No. 02-3676
This was despite acknowledging that “[i]t is clear from the
respondent’s testimony that she had experienced persecu-
tion and acts separate from Francine’s.” (A.R. at 69.)
The IJ’s focus on Uwase’s inability to provide corroborat-
ing evidence from Francine was misdirected. As the sisters
were separated in the DRC refugee camps and not rejoined
until after Uwase found sanctuary at Frida’s, Francine
could not corroborate Uwase’s claims of persecution at the
hands of the RPF, which were central to Uwase’s asylum
claim. Francine, no doubt, endured her own horrors, but did
not witness Uwase’s.
Since Francine shared the same parents as Uwase,
Francine could have corroborated the key fact that Uwase
was of mixed Hutu-Tutsi ethnicity. Francine’s testimony on
that issue may have been duplicative, though, if the IJ had
properly considered Frida’s letter, which reflects Uwase’s
mixed heritage. Regardless, corroborative evidence on key
facts supporting an alien’s asylum claim are not necessary,
where, as we have examined here, the alien’s testimony is
otherwise credible. Georgis, 328 F.3d at 969.
Uwase explained that her sister did not appear as
planned because she was ill with stomach problems. Uwase,
who lived with her sister, did not seek a continuance at the
beginning of the hearing, arrange for her sister’s affidavit,
or offer a copy of her sister’s asylum petition in support of
her own. Although her failure to do so exhibited a lack of
diligence, we do not think it enough to cast suspicion on
Uwase’s credibility in light of how little corroboration her
sister could provide. Nor do we think it proper for the IJ to
have viewed negatively Francine’s failure to answer the
phone when called, without warning, at the close of the
hearing, considering the many possible explanations why
she was not available.
Because we believe the IJ’s decision to deny Uwase’s
application was not based on substantial evidence in light
No. 02-3676 13
of his credibility determination errors and the undue weight
given to the alleged lack of corroborating evidence, we
remand for rehearing. We note that Uwase raises two other
issues on appeal: that the IJ erred in failing to grant her a
continuance to make Francine available to testify and that
the BIA erred in summarily affirming the IJ’s decision
without reviewing the additional evidence presented on
appeal. We do not reach these issues, however, because on
rehearing, Uwase will have the opportunity to present live
testimony from her sister as well as additional documentary
evidence. Like Uwase, the government will also have an
opportunity to submit additional evidence at rehearing,
including updated evidence of country conditions.
III. Conclusion
We VACATE the BIA’s removal order and REMAND for
rehearing.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-21-03