Tesfahun, Henoke v. Gonzales, Alberto R. , 133 F. App'x 332 ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 20, 2005
Decided May 27, 2005
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 04–2396
On Petition for Review of an Order of
HENOKE TESFAHUN the Board of Immigration Appeals
Petitioner,
No. A96 144 365
v.
ALBERTO GONZALES,
Respondent.
ORDER
Henoke Tesfahun fled Eritrea in March 2002 after being imprisoned for a
year and a half and tortured because of anti-government agitation. After a five-day
trek on foot to Sudan, he flew to Mexico and entered the United States without
inspection; shortly thereafter, he claimed asylum. An IJ denied the application,
and the BIA adopted the IJ’s order, adding several grounds of its own. Because the
reasons given by the Board and the IJ reflect neither the record nor careful and
complete reasoning, we grant the petition for review.
I. Background
In 1989 Tesfahun joined the Eritrean People’s Liberation Front (“EPLF”), a
guerrilla movement that advocated independence for the Ethiopian province of
Eritrea. Tesfahun served the EPLF as a soldier until 1991 in the province’s war of
independence with Ethiopia; Eritrea prevailed, and after a referendum in 1993,
declared itself a sovereign state. The EPLF adopted the new name People’s Front
No. 04–2396 Page 2
for Democracy and Justice (“PFDJ”) and formed a government, electing EPLF
leader Issaias Afwerki as the new country’s first president. Once the fighting
stopped, Tesfahun left the army and took a job with the government’s Internal
Affairs office in Asmara, staying on there until 1999.
Late in the 1990s, Tesfahun began voicing his opposition to the PFDJ
government. Like many other Eritreans, he deplored the regime’s well-chronicled
descent into authoritarianism and its stifling of dissent, and strenuously opposed
the government’s decision to go to war again with Ethiopia in 1998 over a border
dispute. Tesfahun organized dissidents and attended local meetings and teach-ins
held at “sport organizations” and churches, “giving speeches” and “express[ing] his
anger” regarding the war. The government pegged him for a rabble-rouser and
police officers arrested him in his home in February 1999.
Tesfahun was taken to a police station, where for two weeks officers
interrogated him, called him a traitor, and beat him repeatedly with fists and rifle
butts. He was then transferred to a nearby prison, where he was held for a year
and five months. Because he had spoken out against the war with Ethiopia,
interrogators assumed that he was a member of the anti-war Eritrean Liberation
Front (“ELF”), an underground opposition party, and demanded that he name other
members and reveal the group’s designs. When Tesfahun denied any affiliation
with the ELF, his captors tortured him repeatedly. He testified that on 22 separate
occasions, he was tortured in one of three ways: he was flogged with an electric
cord, punched in the stomach while his feet and hands were chained together, or
bound loosely to a pole by hand and foot and spun around it while guards beat his
stomach and legs—a method known as the “figure eight.” Tesfahun weakened from
these beatings; he said he “was very skinny and sick,” and eventually was released
to his uncle’s custody “because everyone thought that I was going to die.” He was
taken to his grandmother’s house, where for two months he convalesced with the
help of traditional medicines.
“[D]etermined to fight back,” Tesfahun joined the ELF in December 2000
after having learned about the organization from other prisoners. He became an
“active organizer” for the party, traveling between towns to recruit new party
members, hand out informational pamphlets about the government’s misdeeds and
the opposition’s efforts, and encourage disgruntled Eritreans to form local ELF
branches. His activities again attracted attention from the government, which sent
police officers to his grandmother’s house to find him. But Tesfahun was in another
town performing ELF “field work,” and after his grandmother sent word to him he
dropped everything and set out on foot for Sudan.
In his asylum application, Tesfahun claimed that he had been persecuted
because of his political opinion. The IJ denied the application, concluding that
No. 04–2396 Page 3
Tesfahun had not “corroborated any specific aspects of his claim,” including his
“identity,” his membership in the ELF or EPLF, his injuries, his flight from Eritrea
to the United States, or the long-term psychological impact of his mistreatment.
Therefore, the IJ stated, Tesfahun had not “met his burden of establishing
eligibility for asylum”; the IJ made no specific findings as to credibility, past
persecution, or Tesfahun’s fear of future persecution. The IJ also noted that he
found it “curious” that Tesfahun referred to the current government as the EPLF,
since the party formally changed its name to the PFDJ in 1994. The BIA adopted
the IJ’s opinion in a three-paragraph order, in which it noted two additional points
that showed that Tesfahun had not “met his burden of proof.” First, he had “no
valid explanation as to why he would join ELF . . . after his release from jail,
thereby placing himself and his family at risk,” and second, his “testimony
concerning his anti-government activities” was “extremely abbreviated and lacking
in detail.”
II. Analysis
In this petition, Tesfahun attacks each of the four grounds cited by the IJ
and the BIA for denying his application, first challenging the IJ’s conclusion that he
failed to corroborate certain aspects of his claim. Tesfahun argues that he did
corroborate certain points, and that he sufficiently explained his failure to
corroborate others.
We have stated before that applicants who provide credible testimony need
not supply corroborating evidence. See Lin v. Ashcroft, 385 F.3d 748, 756 (7th Cir.
2004); Uwase v. Ashcroft, 349 F.3d 1039, 1045 (7th Cir. 2003); Georgis v. Ashcroft,
328 F.3d 962, 969 (7th Cir. 2003). But even assuming the need for such
corroboration, we cannot review the IJ’s demand if the IJ does not (1) make an
express credibility finding; (2) explain why it is reasonable to demand
corroboration; and (3) explain why the petitioner’s explanation for failing to supply
corroboration is inadequate. Gontcharova v. Ashcroft, 384 F.3d 873, 877 (7th Cir.
2004). The IJ did none of these things. He did not make an express credibility
finding, although his concerns, and those expressed by the BIA, do tend to center
around the implausibility and lack of veracity in Tesfahun’s narrative. This court
has recently and repeatedly criticized IJs for their failure to make clear findings of
credibility. See, e.g., Iao v. Gonzales, 400 F.3d 530, 534 (7th Cir. 2005); Diallo v.
Ashcroft, 381 F.3d 687, 698–700 (7th Cir. 2004); Muhur v. Ashcroft, 355 F.3d 958,
961 (7th Cir. 2004).
The IJ also did not explain why it was reasonable to expect corroboration,
and he nowhere stated why Tesfahun’s seemingly plausible explanations for failing
to provide corroboration were inadequate. Tesfahun testified that he attempted to
obtain documentation of his ELF activities through ELF members in the United
States, but they had not yet verified his membership with Eritrean ELF members.
No. 04–2396 Page 4
This is unsurprising in light of Tesfahun’s expert witness’s assertion that the ELF
was exiled to Sudan in 1981, and insofar as it exists in Eritrea today, is a
clandestine outfit, and thus likely processes overseas requests for documents
slowly, if at all. Further, it is unsurprising that Tesfahun did not anticipate the
need to bring proof of his six-year employment with the government before fleeing
Eritrea; after all, he left the country on foot, without returning home, when he
learned that he was a wanted man. See Grupee v. Gonzales, 400 F.3d 1026, 1027
(7th Cir. 2005) (stating that applicant who fled country quickly could not be
expected to have planned ahead to bring documentation of his work in home
country). The IJ’s expectation of corroboration of injuries, physical and mental,
sustained in prison is also misplaced because Tesfahun had no medical
documentation; he recovered at his grandmother’s house with the help of
traditional medicines. Further, he says that he tried to find psychological
treatment in the United States, but this was difficult because he had so little
money. See Balogun v. Ashcroft, 374 F.3d 492, 502 (7th Cir. 2004) (noting that
petitioner’s “economic circumstances” may render IJ’s demands of corroboration
unreasonable). In light of this testimony, it is unclear what sort of corroboration
exactly the IJ expected Tesfahun to provide. Finally, Tesfahun’s flight from Sudan
to Mexico—which the IJ insisted he prove—is a detail so minor that no
corroboration is required. See Uwase, 349 F.3d at 1043.
Moreover, Tesfahun did provide some important corroborating evidence.
Contrary to the IJ’s assertion that Tesfahun failed to corroborate his “identity,” he
introduced into evidence letters from two Eritrean friends verifying that he was
born and raised in Eritrea, and that he was arrested by government forces for his
opposition to the ruling regime. The IJ flatly stated, without explanation, that
neither of the letters could “establish the veracity of his claim.” Tesfahun also
buttressed his application with the testimony and affidavit of an expert witness, as
noted above. See Kerciku v. INS, 314 F.3d 913, 918–19 (7th Cir. 2003) (testimony
of expert witness may be so compelling as to control outcome of asylum application).
Tricia Hepner, a doctoral candidate at Michigan State University with many
publications on Eritrean affairs to her name, described the Eritrean government’s
detention and mistreatment in the late 1990s of political opponents such as
students and ELF members. She concluded that “Mr. Tesfahun’s experiences are
consistent with my observations and what is known about the treatment of
dissidents. If deported to Eritrea, he is extremely vulnerable to further harsh
treatments.” The IJ noted Hepner’s remarks but did not explain why they were
insufficient to corroborate Tesfahun’s narrative.
Next Tesfahun argues that the IJ ignored the record when he opined that it
was “curious” that Tesfahun would refer to the current government as the EPLF,
since the State Department Country Report from 2001 notes that the party changed
its name to the PFDJ in 1994. Tesfahun points to Hepner’s testimony that in
No. 04–2396 Page 5
Eritrea, “most people perceive the PFDJ to be the EPLF reconfigured,” confirming
that his use of the older moniker conforms to common practice in his country. This
evidence undermines the IJ’s speculation about the party’s name as a valid reason
for denying Tesfahun’s application, see Uwase, 349 F.3d at 1042 (IJ’s speculation
and conjecture could not serve as basis for discrediting applicant), and there is more
evidence like it. In referring to the State Department report, the IJ ignored the
sentence immediately preceding the sentence noting the EPLF’s change of name:
“The Eritrean People’s Liberation Front (EPLF), which led the 30-year war for
independence, has controlled the country since it defeated Ethiopian armed forces
in 1991; its leader, Isaias Afwerki, serves as the President.” The State Department
report thus buttresses Tesfahun’s explanation that the EPLF, although nominally
defunct, is still perceived by many Eritreans (and by the United States government)
as the party in power.
Tesfahun next turns to the BIA’s additional grounds for denying his
application, beginning with its assertion that he had “no valid explanation” for his
risky decision to join the ELF after his release from prison. Again, this observation
is flatly contradicted by the record. Tesfahun points to his testimony from the
hearing in response to his lawyer’s questions about his reasons for joining the ELF
despite the dangers it entailed: “[W]hatever I suffered my brother will also suffer
under EPLF . . . . What they have done to me is something that you don’t do to a
human being and what they have done to me could be done to others, too. And I
had to do something about that.” The BIA did not address this justification for
joining the ELF, but stated merely that Tesfahun had offered “no valid
explanation.” This choice of words is particularly indicative of the perfunctory
nature of the IJ’s and BIA’s opinions in this case: would the Board similarly
describe as not “valid” Nelson Mandela’s decision to fight apartheid rather than flee
South Africa after his release from prison in 1990?
Finally, we disagree with the BIA’s characterization of Tesfahun’s testimony
regarding his anti-government activities as “extremely abbreviated and lacking in
detail.” Tesfahun’s testimony, in our opinion, is of sufficient detail to establish that
he was an anti-government agitator and suffered serious mistreatment as a result
of his political opinion, which is all that he was required to demonstrate. See Qiu v.
Ashcroft, 329 F.3d 140, 151 (2d Cir. 2003) (holding that testimony is “too vague”
only if it fails to identify facts corresponding to each element of refugee status
under the immigration statutes). This is particularly true in light of the detailed
testimony Tesfahun provided regarding the most important elements of his claim,
such as his detention and torture. See Admin. R. 75 (describing initial
interrogation by three officers and five prison guards); 80–81 (detailing specific
methods of torture and the number of times each was applied). Thus, like the other
three grounds cited by the BIA and the IJ, we are convinced that this point does not
provide substantial evidence for the denial of Tesfahun’s asylum application.
No. 04–2396 Page 6
III. Conclusion
We grant the petition for review, vacate the underlying decision, and remand
for further proceedings.