Giday, Selemawit v. Gonzales, Alberto R. ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1962
SELEMAWIT F. GIDAY,
Petitioner,
v.
ALBERTO R. GONZALES,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A95-395-594
____________
ARGUED JANUARY 11, 2005—DECIDED JANUARY 5, 2006
____________
Before POSNER, MANION, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Selemawit Giday requests
asylum in this country, claiming that the government of the
country of Eritrea, where she was born and raised, perse-
cuted her due to her mixed Ethiopian and Eritrean ances-
try. An immigration judge deemed her testimony not
credible and found, in the alternative, that she had failed to
establish that she met the criteria for refugee status. The
Board of Immigration Appeals (BIA) affirmed and adopted
the opinion below rejecting Giday’s appellate claim that the
immigration judge below had denied her due process of law.
Because, among other reasons, we find that the immigra-
tion judge’s credibility determinations were not supported
2 No. 04-1962
by cogent reasons bearing a legitimate nexus to the finding,
we reverse and remand this case for further proceedings.
I.
Giday’s tale of mixed ancestry is a familiar one. Having
been born and raised in Eritrea, Giday considers herself
Eritrean. During Eritrea’s conflict with Ethiopia, however,
Giday alleges, her partial Ethiopian ancestry (her mother
is Ethiopian and her father Eritrean) subjected her to
persecution by the Eritrean Government. Giday applied for
asylum on January 23, 2002, approximately six months
after arriving in the United States. The government
initiated removal proceedings on March 25, 2002. At her
removal hearing on May 22, 2002, she testified that she was
born in 1979 in Asmara, Eritrea to an Eritrean father and
an Ethiopian mother. After her father’s death in 1985, when
Giday was six, her Ethiopian mother supported Giday and
her two brothers by operating a restaurant in Asmara,
Eritrea. Giday performed one year and eight months’
mandatory service in the Eritrean national service in 1996,
and in June 1998, the national service provided her with an
identification card noting her Eritrean nationality.
In 1998, heavy fighting broke out between Ethiopia and
Eritrea. The government of Eritrea announced that people
of Ethiopian ancestry could no longer operate businesses
and had to leave the country. According to Giday, in May
1998, despite completing her earlier national service,
government officials again called her to serve. She ex-
plained to the national service officers that she was attend-
ing school and soon to be married. The government officers
told her, “when we need you, you should be able to go with
us.” She testified that she was able to avoid serving by
moving from her mother’s house to her fiance’s house
whenever she heard word that government officials were on
their way.
No. 04-1962 3
Giday further testified that on September 12, 1999, the
city police appeared at her Ethiopian mother’s restaurant
and ordered it closed. Within two weeks, the police, pursu-
ant to an order by the Eritrean government, arrested
Giday’s mother and deported her to Ethiopia. Around the
same time, Giday’s brothers were conscripted into the
national service and Giday stated that she has not heard
from either her mother or brothers since that time.
In September 2000, the Eritrean government took Giday
into custody and placed her in a detention facility for
Ethiopians awaiting forced deportation. Giday initially
testified that she was detained because her mother was
Ethiopian and also because she had failed to serve in the
national service a second time. She later testified that she
was detained solely because of her Ethiopian ancestry. Her
written statement, attached to her application for asylum
does not identify specifically why she thought she was
detained but states only that after she was arrested, she
“was told that [she] would be deported and was placed in a
jail with other Eritreans of Ethiopian descent.” (R. at 210).
According to Giday, the detention center was crowded,
hot, dirty, and the officers permitted Giday and her fellow
detainees to use the bathroom facilities only two times a
day. While there, she had no opportunity to present her
case to a judge or otherwise to object to her detention and
deportation. Giday’s asylum application stated that she was
beaten there, although during her hearing she testified only
that she was “pushed around.” Two days before she was
scheduled for deportation, her husband—an Eritrean—
managed to secure her release by bribing prison guards.
Giday’s husband secreted her into a waiting car, across the
Sudanese border, and from there she entered the United
States. She claims she has never been to Ethiopia, does not
speak the language, and that she cannot return to Eritrea
because the Eritrean government stripped her of citizenship
when she was arrested and detained.
4 No. 04-1962
At the conclusion of her removal hearing, the immigration
judge found Giday’s testimony not credible. Even were it
credible, he continued, she failed to bear the burden of
demonstrating that she was a refugee—that is, that she had
faced past persecution or had a well-founded fear of future
persecution because of her mixed Ethiopian and Eritrean
ancestry. Consequently, he found her removable as charged,
denied her application for asylum, denied her application
for withholding of removal and protection under the
Convention Against Torture, and ordered her removal to
Eritrea.
On appeal, the BIA adopted and affirmed the oral deci-
sion of the immigration judge and added its own findings
regarding her claim. The BIA stated that “[a]lthough the
respondent may have demonstrated that she experienced
past persecution, we take administrative notice of the fact
that conditions for most people of Ethiopian extraction have
changed substantially for the better in Eritrea since the
time of the respondent’s experiences there,” and found,
consequently, that the presumption of future persecution
had been rebutted. (R. at 2-3). In response to Giday’s claim
that the immigration judge had denied her due process with
his frequent interruptions and badgering cross-examina-
tion, the BIA found that the judge had been assertive, but
not offensive, and noted that Giday had made no record of
protest during the proceedings below.
No. 04-1962 5
II.
Where the BIA affirms and adopts an immigration judge’s
order, the decision of the immigration judge constitutes the
final agency determination for purposes of our review.
Hussain v. Gonzales, 424 F.3d 622, 626 (7th Cir. 2005). In
this case the BIA both affirmed and adopted the decision of
the immigration judge and appended to that determination
a ruling regarding Giday’s due process challenge and its
own statement regarding Giday’s credibility and likelihood
of future persecution. Consequently, we review both the
immigration judge’s decision and the additional reasoning
of the BIA. See Voci v. Gonzales, 409 F.3d 607, 612-13 (3d
Cir. 2005); Kataria v. INS, 232 F.3d 1107, 1112 (9th Cir.
2000).
Giday argues first that the immigration judge violated
her right to due process when he engaged in abusive,
sarcastic, and overbearing cross-examination. His ques-
tions, she argues, inhibited direct examination and hin-
dered her from testifying fully and accurately. The question
of whether an asylum hearing comported with the require-
ments of due process is purely a legal one which we review
de novo. Rodriguez Galicia v. Gonzales, 422 F.3d 529, 536
(7th Cir. 2005).
The Fifth Amendment entitles aliens to due process of
law in deportation proceedings. Reno v. Flores, 507 U.S.
292, 306 (1993). Due process requires that a court afford an
applicant a meaningful opportunity to be heard and a
reasonable opportunity to present evidence on her behalf.
Rodriguez Galicia, 422 F.3d at 538. Recently we had the
opportunity to consider what constitutes “a meaningful
opportunity to be heard,” and concluded that “we must
determine whether, given the totality of the circumstances,
the petitioner had a full and fair opportunity to put on her
case.” Id. at 538. In Rodriguez Galicia we expressed deep
concern when the immigration judge frequently interrupted
testimony, appeared to be hostile to the petitioner, and
engaged in active, “de-facto cross-examination” as though
6 No. 04-1962
he were counsel for the government rather than a neutral
arbiter. Id. at 539. See also Kerciku v. INS, 314 F.3d 913,
918 (7th Cir. 2003) (finding that an applicant’s due process
rights were violated where the judge continually inter-
rupted testimony and took over questioning); Podio v. INS,
153 F.3d 506, 510-11 (7th Cir. 1998) (concluding that the
applicant was denied a fair hearing where the immigration
judge frequently interrupted and took over questioning).
The Rodriguez Galicia panel did not need to decide defini-
tively whether the judge’s overly-active role in the presenta-
tion of the testimony denied the asylum applicant due
process of law, as the immigration judge had imposed other
barriers to testimony that made clear the due process
violation. Id.Having reviewed the transcript of the hearing in Rodri-
guez Galicia, we note that the judge’s active questioning in
that case pales in comparison to the case before us now. In
this case the immigration judge asked Giday approximately
seventy-three questions. In comparison, her own attorney
asked her approximately eighty-seven questions (only about
14 more) and the government lawyer only four.1 Of course
a large volume of questions alone does not create a due
process violation, but in this case the immigration judge
charged into the fray, cross-examining Giday about even the
most mundane facts of her life story. For example, within
the first few minutes of questioning the following confronta-
tion occurred:
Q. by the immigration judge:
1
Toward the end of the proceeding the immigration judge
interrupted his questioning to allow for a tape change. When the
transcript resumes the judge says, “[t]his is tape four . . . . The
Government’s attorney was questioning the respondent.” (R. at
106). The transcript, however, reveals no previous questions from
the government—leading us to believe that some portion of the
hearing was not recorded by tape or transcript.
No. 04-1962 7
. . . how old were you when your father died,
ma’am?
A. I was six years old.
Q. So, sometime around 1985?
A. I would say, yes. I don’t remember exactly, but I
was, I was very young at that time when he died.
Q. You were born in 1979, correct?
A. Yes, I was born in ‘79.
Q. So, if you were six years old, would that have
been sometime around 1985 when your father
died?
A. It could be. Yes, it could be that time.
Q. What do you mean it could be? Don’t you know
when your father died?
A. At that time, I was six years old when he passed
away.
Q. So that would have been around 1985?
A. Yes.
(R. at 76).
We do not find it nearly as odd as the immigration judge
did that Giday might remember precisely how old she was
when her father died, but not have the capacity to do the
arithmetic to calculate what year he died. This is precisely
the type of insensitivity to cultural differences or educa-
tional abilities about which we expressed concern in Iao v.
Gonzales, 400 F.3d 530, 534 (7th Cir. 2005).
Of course we recognize that it is primarily the immigra-
tion judge’s province to evaluate evasiveness. Korniejew v.
Ashcroft, 371 F.3d 377, 386 (7th Cir. 2004). Nevertheless,
the transcript makes clear that at times, Giday was not
8 No. 04-1962
purposefully evading questions, but rather the problem lay
in translation error.2 For example, when the immigration
judge asked, “[h]ow do I know your mother is Ethiopian?”
the following exchange of non-sequiturs ensued: “They do
know her that she’s somehow popular, she owns a restau-
rant, and people knows her who comes to her restaurant.
And, even though, during referendum even if they give
them an identification or a right to vote, after that they
start to find out who is Ethiopian and who is Eritrean.” (R.
at 81). The judge responded, “Maybe they know, but how do
I know?” Id. Similarly, when Giday became flustered by a
confusing question, the judge simply gave up and found
Giday not credible:
Q by Judge. Ma’am, I have played the tape back, and
you definitely stated that the reason they
arrested you, because they told you your
mother was Ethiopian, and they said you
did not serve in the national army. You
heard the tape I played back for you,
didn’t you?
A. Yes, I did.
Q. Do you have an explanation why you said
that that wasn’t what was told to you?
A. Which one?
Judge to Giday’s counsel:
2
We note that the transcript of the hearing is filled with
examples of grammatical errors and awkward word choice
indicating the likelihood of a less than perfect translation from
Giday’s native Tigrean to English. Translation is a complex and
tiring task; errors are bound to occur even in the best of circum-
stances with the most competent translators. Errors cannot be
avoided, but immigration judges must be sensitive to the complex-
ities of receiving testimony through a translator and take into
account these difficulties when assessing credibility.
No. 04-1962 9
Q. I’m not planning to ask any further ques-
tions on this issue, counsel. The respon-
dent has failed to explain the inconsistent
testimony.
(R. at 95-96).
We have previously given impatient and inappropriate
judges a pass on the theory that “[a]n immigration judge is
permitted to interrogate, examine, and cross-examine the
alien and any witnesses.” See Diallo v. Ashcroft, 381 F.3d
687, 701 (7th Cir. 2004), citing 8 U.S.C. § 1229a(b)(1). An
immigration judge, unlike an Article III judge, is not merely
the fact-finder and adjudicator but also has an obligation to
establish the record. Hasanaj v. Ashcroft, 385 F.3d 780, 783
(7th Cir. 2004). But when the questioning becomes so
aggressive that it frazzles applicants and nit-picks inconsis-
tencies, any benefit that the barrage of questions contrib-
utes to the development of the record may be lost in the
distortion it creates. And by the end of the hearing, Giday
became so distraught that the immigration judge was forced
to pause the proceedings to give “the respondent a chance
to collect herself, since the respondent is emotional.” (R. at
114). This case presents a close call and one we need not
make, for in any case this matter must be remanded to
rectify issues with the immigration judge’s credibility
determinations. We note, however, that the volume of case
law addressing the issue of the intemperate, impatient, and
abrasive immigration judges should sound a warning bell to
the Department of Homeland Security that something is
amiss. Diallo, 381 F.3d at 701, Hasanaj, 385 F.3d at 783,
Kerciku, 314 F.3d at 918, Podio, 153 F.3d at 510. As we
have said before, an immigration judge, like any judge,
must display the “patience and decorum befitting a person
privileged with this position.” Diallo, 381 F.3d at 701.
10 No. 04-1962
A. Credibility Determination
Although we may overlook the immigration judge’s
intemperate questioning, we cannot affirm his adverse
credibility finding. An immigration judge’s credibility
determinations are accorded substantial deference and
should only be overturned under extraordinary circum-
stances. Korniejew, 371 F.3d at 382. Although this standard
of review of an immigration judge’s credibility determina-
tion is highly deferential, “we will not automatically yield
to the immigration judge’s conclusions when they are drawn
from insufficient or incomplete evidence.” Rodriguez
Galicia, 422 F.3d at 537 (citing Georgis v. Ashcroft, 328 F.3d
962, 968 (7th Cir. 2003)); Tabaku v. Gonzales, 425 F.3d 417,
421 (7th Cir. 2005) (same). We cannot uphold credibility
assessments unmoored from the record, based on nothing
but the immigration judge’s personal speculation or conjec-
ture. Tabaku, 425 F.3d at 421. Instead, credibility findings
must be based on specific cogent reasons that bear a
legitimate nexus to the finding and that go to the heart of
the applicant’s claim. Rodriguez Galicia, 422 F.3d at 537;
Tabaku, 425 F.3d at 421 (internal citations omitted).3
The immigration judge gave four reasons for his adverse
credibility determination. First and foremost, he expressed
concern about inconsistencies in Giday’s testimony regard-
ing her second call to serve in the national service of Eritrea
in May 1998. According to the immigration judge, Giday
testified first that she was “given a pass not to serve”
because she was getting married and attending school. The
immigration judge claims that she then changed her story
3
Section 101(a)(3) of Title I of the REAL ID Act of 2005, 8 U.S.C.
§ 1158(b)(1)(B), contains new standards for credibility determina-
tions in cases involving applications for asylum. These standards
apply only to applications made on or after May 11, 2005 (the date
of enactment). See id. Since Giday applied for asylum more than
three years prior to the effective date of the Act, the new standard
does not apply.
No. 04-1962 11
to mislead the court into thinking that she had to hide from
the government in order to avoid service.
Even with our thumbs on the deference side of the scale,
we cannot submit to an immigration judge’s determination
of inconsistent testimony when the record does not support
the finding. According to Giday, after she had already
satisfied her obligation for mandatory national service in
1995, she was again summoned for national service in
May 1998. The record does not reveal whether representa-
tives of the national service came to her home or summoned
her by telephone or mail, but when asked to serve again,
Giday responded that she could not serve because she was
soon to be married and also because she was attending
school (R. at 85). The representative of the national service
responded, “well, when we need you, you should be able to
go with us.” (R. at 89). From that point forward Giday
avoided national service by hiding from the call—moving
back and forth between her mother’s house and her fiance’s
house. (R. at 86) (“I have been in a sort of hiding. They
could not trace me where I am. Sometimes I go to my
fiance’s house, sometimes I stay where I am.”); (R. at 88)
(“Your Honor, I was using my time that sometimes I go to
my fiance’s house, sometimes I go to my mother’s house in
order to pass that time when they needed, when they called
people just to kill that time. That’s what I have been using
not to be caught by them.”); (R. at 89) (“that’s what I have
been doing not to be traced where I am, so I had two places
where they can’t catch me.”); (R. at 91) (“whenever I get
information that when they are ready to pick people or to
take people to national service, I go to my boyfriend’s house
to hide.”).
The immigration judge seemed quite concerned that
representatives from the national service never came and
took her to serve forcibly. Giday’s testimony, however,
explains that on her first encounter with the government
officers she was informed that she would be conscripted and
12 No. 04-1962
that when she was needed she would have to serve. She
successfully avoided this future obligation by continuing to
hide. The immigration judge found Giday incredible because
she “attempted to have this Court believe that she was in
hiding for her refusal to serve in the army when in fact she
was allowed an excuse not to serve in the army after May
of 1998.” (R. at 47). We can find nowhere in the record
where Giday testified that she was granted a pass based on
her marriage and school excuse. In fact, she notes that in
response to her marriage and school excuse, she was told
simply, “when we need you, you should be able to go with
us.” (R. at 89). It is true that the government agents did not
forcibly conscript her the day that they came calling, (R. at
87) (“I told them what my situation is, and they didn’t force
me.”), but neither was she “allowed an excuse not to serve
in the army” as the immigration judge alleged. (R. at 47). In
response to the immigration judge’s multiple questions
about how she avoided the consequences of dodging the call,
she continually and consistently stated that she avoided
service by hiding. (R. at 86), (R. at 88),(R. at 89), (R. at 90)
& (R. at 91).
This, of course, was not the immigration judge’s only
credibility concern. He also pointed out that when Giday
was questioned by counsel as to why she was arrested, she
stated, “They came and took me, because they say that my
mother’s Ethiopian, and I didn’t serve under the national
service, and they didn’t want me to be in Eritrea.” (R. at
93). Subsequently, Giday testified that she was arrested
because her mother was Ethiopian. (R. at 98). Although the
subject matter is material, the discrepancy is minor and
easily explained. Adverse credibility determinations should
not be based upon easily explained discrepancies
or perceived discrepancies. Korniejew v. Ashcroft, 371 F.3d
377, 387 (7th Cir. 2004). Nor should they be based on
matters that do not go to the heart of the asylum claim. Id.
at 383; Uwase v. Ashcroft, 349 F.3d 1039, 1043 (7th Cir.
No. 04-1962 13
2003). The confusion is easily explained by Giday’s later
testimony. When the police initially arrested Giday, she did
not know why they had seized her: “They didn’t explain to
me why they took me, but, after they took me to their, to
the station where the Ethiopians were arrested, and I told
them that I’m not an Ethiopian, and my father’s Eritrean,
and, also, I did serve my national service, why are you
taking me?” (R. at 97). And because she spent so much time
evading the second draft, her first conclusion may well have
been that she was being arrested for dodging the call to
service. When she arrived at the detention center, however,
she observed that it was filled with persons of Ethiopian
ancestry whom the government planned to deport to
Ethiopia. (R. at 98). It is error for an immigration judge to
find an asylum applicant not believable based on such a
minor and easily explained discrepancy.
The third alleged inconsistency involves the amount of
time that Giday spent in detention. On her application for
asylum and withholding of removal Giday states that “[i]n
September 2000, while my husband was away at school, the
police came and arrested me. I was held for three weeks
while being abused and beaten by authorities.” During her
testimony in front of the immigration judge, Giday repeat-
edly talked about the two weeks she spent in the detention
center. (R. at 99) (“on [sic] my case I was told that in two
weeks I should be able to leave.”); (R. at 100) (Q. by Judge:
So, total, you were in detention camp for two weeks?” A.
“Yes.”). When the immigration judge confronted her with
the inconsistency between her written and oral testimony
her only explanation was that “[t]he right one is three
weeks. I was not getting the [sic] right. It wasn’t two
weeks.” (R. at 106). We agree that her answer is a bit
unsatisfying. After all, she had mentioned the time frame
of two weeks at several points in her testimony. Again,
however, the discrepancy is easily explained. Giday’s oral
testimony was actually that she was held for two weeks and
two days:
14 No. 04-1962
•“After my being there for two weeks, after two weeks,
they told us that you guys will be leaving in two
days.” (R. at 100);
•“[A]fter my two weeks detention, and after I learned
that they are going to take me in two days, then after
they told us, I was lucky enough that I was helped by
God and my husband.” Id.;
•“[A]fter that, I was arrested for two weeks, and after
that they told that we’ll be deported in two days.” (R.
at 104).
Because Giday was detained for more than two and less
than three weeks, it is not odd that she might report the
duration as either two weeks or three weeks. Thus this
discrepancy, like the previous one, is easily explained.
Korniejew, 371 F.3d at 387. And in any case, it simply is not
material. We think it unlikely that the BIA would have
granted a request for asylum based on a twenty-one day
detention but denied it for a sixteen or seventeen day
detention with identical facts. This irrelevant inconsistency,
therefore, cannot form the basis of an adverse credibility
determination. Rodriguez Galicia, 422 F.3d at 537.
Furthermore, Giday does not base her claim of past
persecution on her detention, but on her forced deportation
from Eritrea based on her Ethiopian ancestry. Her deten-
tion, whether two weeks or three weeks, is additional
evidence of Eritrean animus toward and hostile treatment
of Ethiopians, but it is her forced deportation that forms the
crux of her claim of past persecution.
The immigration judge’s final credibility concern centered
around Giday’s treatment in the detention camp. Giday’s
asylum application narrative states that “I was held for
three weeks while being abused and beaten by police
authorities.” (R. at 210). She also states, the police officers
abused us verbally and physically, while we were held in a
very dirty cell.” Id. At her hearing, the immigration judge
No. 04-1962 15
asked her to explain what happened during her two weeks
in the camp, and she answered,
Well, in that two weeks, the place was, it wasn’t very
good, there was no air conditioning, it was very hot,
and, also the police who were the guards who are using
very bad language. They were accusing us, and they
didn’t give me a chance to explain that I’m Eritrean.
And, also, the facility was not good. We would not have
a chance to go out, and we, the place was really dirty.
(R. at 104). The judge later confronted her with her written
statement about being beaten and says, “[o]ne second. I will
give you a chance on the next tape to explain.” (R. at 106).
The transcript resumes without any further mention of the
inconsistent statement regarding the beatings. (See footnote
1, supra). The immigration judge’s oral decision and order
states, “[t]he respondent was given the opportunity to
explain once again the inconsistency, and the respondent’s
explanation was that she was pushed around in the deten-
tion camp.” (R. at 49). Due to the incomplete transcript we
cannot review this alleged inconsistency. Nor can we
determine whether the term “pushed around” is the immi-
gration judge’s summary of Giday’s testimony or her own
words. In any case, an inconsistency between being “beaten”
and being “pushed around” is simply a matter of degree and
could easily arise due to translation error.4
4
As we noted earlier, the transcript in this case abounds with
grammatical errors and awkward word choice. Immigration
judges must consider the possibility of translation errors or
misunderstandings when the credibility determination hinges on
inconsistencies that could be explained by word choice expressing
matters of degree (e.g., in this case “beaten” or “pushed around”).
See Iao, 400 F.3d at 534 (noting a frequent insensitivity to the
possibility of misunderstandings caused by the use of translators
in immigration cases).
16 No. 04-1962
Nevertheless, we cannot disturb a credibility determina-
tion simply because an alternate finding could also be
supported by substantial evidence. Capric v. Ashcroft, 355
F.3d 1075, 1086-87 (7th Cir. 2004). But even were we
convinced that the inconsistency between being “beaten”
and “pushed around” was material and consequential, it
seems unlikely that the immigration judge would make the
same credibility determination based on one inconsistency
rather than the four he originally noted. See Georgis v.
Ashcroft, 328 F.3d 962, 970 (7th Cir. 2003) (“having found
that the other five reasons given by the IJ for discrediting
[the applicant] are either unsupported by the evidence in
the record or based on incomplete or improperly excluded
evidence, we are not inclined to defer to his credibility
determination on this remaining sixth ground alone.”) In
short, the credibility determination in this case is not
supported by cogent reasons bearing a legitimate nexus to
the finding, and the matter must be remanded for a new
hearing.
B. Persecution
Although the immigration judge disbelieved the bulk of
Giday’s testimony, he went on to consider whether she was
entitled to asylum assuming the truth of her claims. He
concluded that she was not. To establish such a claim,
Giday had the burden of proving that she was a refugee—
a person who has endured past persecution or has a well-
founded fear of future persecution based on one of the
statutorily protected categories, including, nationality. See
8 U.S.C. § 1101(a)(42)(A); Diallo, 381 F.3d at 697. The
statute presumes that an applicant who has endured past
persecution has a well-founded fear of future persecu-
tion—a presumption that the Department of Homeland
Security may rebut by demonstrating a change in circum-
stances or a reasonable ability on the applicant’s part to
No. 04-1962 17
relocate within the applicant’s country. 8 C.F.R.
§ 208.13(b)(1); Diallo, 381 F.3d at 697. The applicant who
fails to demonstrate that she has faced past persecution,
can still establish a genuine fear of future persecution
based on credible, direct, and specific evidence that a
reasonable person in the same circumstances would fear
persecution if returned. Hernandez-Baena v. Gonzales, 417
F.3d 720, 723 (7th Cir. 2005).
The immigration judge found that Giday failed to estab-
lish that she faced past persecution or that she had a well-
founded fear of persecution should she return to Eritrea.5
We must affirm the decision of the immigration judge if it
is “supported by reasonable, substantial, and probative
evidence on the record considered as a whole.” INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992), and reverse only
where the evidence is so compelling that a reasonable fact-
finder would be compelled to reach an opposite conclusion.
5
As noted above, where the BIA affirms and adopts the decision
of the immigration judge, we review the immigration judge’s
order. In this case it is unclear whether the BIA affirmed and
adopted the immigration judge’s decision on past persecution or
made an alternate finding. The BIA’s order states, “Although
respondent may have demonstrated that she experienced past
persecution . . . we find that the presumption of future persecution
is rebutted and that the respondent does not have a well-founded
fear of persecution in her native land at this time.” (R. at 2-3). The
government argues that the BIA’s statement is a mere “alterna-
tive holding” and does not reflect any disagreement with the
immigration judge’s finding of no past persecution. The language
of the BIA order certainly suggests disagreement with the
immigration judge’s finding of no past persecution. Furthermore,
had the BIA meant merely to adopt and affirm the immigration
judge it would have had no reason to write further on the subject.
We need not resolve this minor issue, however, as the decision on
past persecution must be revisited by the immigration judge on
remand for the reasons we describe at length below.
18 No. 04-1962
Diallo, 381 F.3d at 695. This expansive level of deference,
however, does not require or permit us to affirm unreasoned
decisions. Ioa, 400 F.3d at 535.
We recently considered a claim of past persecution in the
mirror image of this case involving two ethnic Eritreans
who had been stripped of citizenship by Ethiopia. In that
case the immigration judge below concluded that the
petitioners had not been subject to past persecution when
the Ethiopian government stripped them of their citizen-
ship, reasoning that a sovereign country has a right to
determine who is or is not a citizen. Haile v. Gonzales, 421
F.3d 493, 494 (7th Cir. 2005) (citing Faddoul v. INS, 37
F.3d 185, 189 (5th Cir. 1994) and De Souza v. INS, 999 F.2d
1156, 1159 (7th Cir. 1993)). On appeal, this court chal-
lenged the reasoning of the immigration judge, noting the
distinction between denying citizenship to a non-citizen
resident and stripping a person of citizenship already
attained. Id. at 496. We further suggested that a program
of denationalization and deportation would indeed seem to
constitute persecution, but left that final determination to
the BIA whose job it is to determine the meaning of the
term persecution. Id. The immigration judge’s decision
below simply ignores Giday’s claim of past persecution in
the form of forced denationalization and examines, instead
only her detention and her claims of feared future persecu-
tion.
In examining Giday’s fear of future persecution, the
immigration judge first focused on the arrest and deporta-
tion of Giday’s mother. “Attacks on family members,” he
concluded, “do not necessarily establish a well-founded fear
of persecution absent a pattern of persecution tied to the
petitioner.” (R. at 52). Although this is an accurate state-
ment of the law, it simply does not apply in Giday’s case.
Giday is not making a claim of derivative persecution, but
of direct past persecution. According to her story, Giday
herself was detained and threatened with deportation. And
No. 04-1962 19
but for her husband’s bold attempts to bribe the detention
camp guards, Giday would have been stripped of her
Eritrean citizenship and deported to Ethiopia. Her mother’s
adversity merely serves as evidence of the fact that Eritrea
was indeed deporting persons of Ethiopian nationality. In
discussing whether Giday’s story of detention and threat-
ened deportation constitutes past persecution, the immigra-
tion judge made the odd observation that “the respondent
was able to leave detention after her husband bribed
officials.” It would be illogical indeed to deny asylum to the
refugee who narrowly escaped persecution, particularly
where escape came only by bribing corrupt, rogue govern-
ment officers. It is an error of law to assume that an
applicant cannot be entitled to asylum if she has demon-
strated the ability to escape persecution only by chance or
by trying to remain undetected. See, e.g., Muhur v. Ashcroft,
355 F.3d 958, 960 (7th Cir. 2004) (it is a clear error of law,
that one is not entitled to claim asylum on the basis of
religious persecution if one can escape the notice of the
persecutors by concealing one’s religion). There is no
guarantee that, should Giday return to Eritrea and be
threatened with deportation again, she will again be so
lucky to be detained by police officers amenable to pay-offs.
See, e.g., Garcia-Ramos v. INS, 775 F.2d 1370, 1374 (9th
Cir. 1985) (when an applicant “obtained his passport by
paying a bribe to a government official: his ability to obtain
a passport may have little or no relevance to his claim of
possible persecution.”)
Equally strange is the immigration judge’s notion that
Giday’s mandated service in the Eritrean army was evi-
dence not only of the fact that Giday was considered a
citizen of Eritrea, but also that the government of Eritrea
somehow conferred benefits of citizenship upon her. The
immigration judge wrote, “[t]he respondent was considered
Eritrean enough that she was serving in the Eritrean Army
in 1995. The evidence reflects that this respondent has been
20 No. 04-1962
allowed to have all of the benefits as a national of Eritrea.”
(R. at 53). Giday would be shocked, we think, to learn that
her compelled national service was somehow a benefit of
citizenship. And in any case, the service to which the
immigration judge referred occurred in 1995— before the
major conflict erupted between Ethiopia and Eritrea. (R. at
138). As for the government’s attempts to compel her to
perform a second round of service in 1999, we do not
understand how compelled national service offers any
indicia of citizenship. In this country, for example, all male
persons between the ages of eighteen and twenty-six
residing in the United States, whether citizens or not, must
register with the selective service (although an exception is
made for aliens admitted as non-immigrants). 50 U.S.C.A.
app.§ 453. Resident aliens were drafted alongside United
States citizens during the Vietnam War. See Dunn v. INS,
419 U.S. 919, 921-22 (1974) (Stewart, J., dissenting from
denial of certiorari.) At times, various government regimes
have used the draft to persecute hated ethnic minorities by
sending them into battle unprepared or in the most hazard-
ous of positions. Miljkovic v. Ashcroft, 376 F.3d 754, 756
(7th Cir. 2004). The immigration judge’s statement that “it
is well-settled that forced recruitment into the military and
prosecution for refusal to serve in the military are not
considered persecution” paints the legal landscape with too
broad a stroke. (R. at 54). Giday did not appear to argue
that she was singled out for service based on her Ethiopian
nationality, although her testimony that her brothers
disappeared after being drafted certainly raises the ques-
tion of whether national service was particularly dangerous
or deadly for those of Ethiopian descent. In any case,
Giday’s claim of forced conscription is again backdrop for
her primary claim of past persecution—forced denational-
ization and deportation, a claim largely ignored by the
immigration judge below.
This case, like our recent decision in Haile, demands a
remand not only to correct errors in the credibility determi-
No. 04-1962 21
nations described above, but also for additional consider-
ation of whether Giday’s threatened deportation constitutes
past persecution.
As for Giday’s well-founded fear of future persecution, the
BIA found that the government had successfully rebutted
any claim of a well-founded fear of future persecution by
demonstrating that the conditions in Eritrea had improved
substantially for people of Ethiopian extraction. (R. at 2).
Although the conditions for Ethiopians certainly have
improved since Giday escaped in 2000, according to the
State Department’s 2004 Country Report on human rights
in Eritrea (hereinafter “2004 Report”), Eritrea’s human
rights record remains poor.6 Ethiopian nationals clearly face
continued human rights abuses in Eritrea. The government
singles them out for arrest when they are unable to renew
their residency permits every six months and they continue
to be detained in unknown numbers. 2004 Report at § 1(d).
They are still prohibited from living in certain provinces of
the Country. Id. at § 2(d) The Government continues to
repatriate Ethiopians to Ethiopia although the State
Department Report claims these repatriations—549 in
2003—are “voluntary.” Id. Even if Giday is still considered
an Eritrean National, it is uncertain whether she will be
allowed to return, as citizens who have been declared
ineligible for political asylum by another government may
not be permitted to return to Eritrea. Id. Furthermore, it is
unclear whether citizens who left without exit visas (as
Giday did) would be permitted to return without conse-
quences. Id.
6
We take judicial notice of the country conditions as they exist
currently. Medhin v. Ashcroft, 350 F.3d 685, 690 (7th Cir. 2003)
(taking judicial notice of current state department country report);
Dobrota v. INS, 195 F.3d 970, 973 (7th Cir. 1999) (taking judicial
notice of the State Department’s most recent country report on
Romania).
22 No. 04-1962
In particular to Giday, the government continues to
authorize the use of deadly force and torture against draft
evaders and deserters—including prolonged sun exposure
in temperatures up to 133 degrees Fahrenheit or the
binding of hands, elbows, and feet for extended periods of
time, and detention in conditions so dismal as to create
mental and physical stress. Id. at § 1(a),(c). Although it
might be true that sovereign governments do not engage in
persecution when they draft citizens in order to raise
armies or when they punish citizens for avoiding conscrip-
tion (See Tesfu v. Ashcroft, 322 F.3d 477, 482 (7th Cir.
2003)), they are not given a free pass to torture and kill
citizens as a form of such punishment. Although the
Country Report states that efforts to detain women draft
evaders have generally decreased in 2003, there is no
evidence that they have ceased.
III.
On remand, the immigration judge will need to consider
the most recent version of the Country Report to determine
whether, in fact, Giday’s fear of future persecution should
be allayed. Then too, will the immigration judge be able to
re-assess the probability of persecution as required for a
determination on Giday’s request for withholding of re-
moval and Convention Against Torture relief.
This matter is REVERSED and REMANDED for proceedings
consistent with this opinion.
No. 04-1962 23
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-5-06