Muna Abdulaziz Kedir v. Alberto Gonzales , 178 F. App'x 596 ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-1670
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Muna Abdulaziz Kedir, *
*
Petitioner, *
* Petition for Review of
v. * an Order of the
* Board of Immigration Appeals.
Alberto Gonzales, Attorney General *
of the United States, * [UNPUBLISHED]
*
Respondent. *
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Submitted: April 5, 2006
Filed: April 27, 2006
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Before RILEY, MAGILL, and GRUENDER, Circuit Judges.
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PER CURIAM.
Muna Abdulaziz Kedir, a citizen of Ethiopia, petitions for review of an order
of the Board of Immigration Appeals (BIA), which summarily affirmed an
Immigration Judge’s (IJ’s) denial of asylum, withholding of removal, and relief under
the Convention Against Torture (CAT).1 We grant the petition.
1
Where the BIA summarily affirms, this court reviews the IJ’s decision as the
final agency determination. See Hoxha v. Gonzales, 432 F.3d 919, 920 (8th Cir.
2006).
Kedir entered the United States in March 1999 and in March 2000 she applied
for asylum. Kedir claimed that her father is of Eritrean origin; that because of their
Eritrean ethnicity, her family had been persecuted in Ethiopia; and that she feared
persecution based on her Eritrean ethnicity if she returned to Ethiopia. At a merits
hearing in December 2002, Kedir also testified that if she tried to return to Ethiopia,
the Ethiopian government would not accept her due to her Eritrean ethnicity. When
the IJ questioned her about whether her Ethiopian passport was still valid, Kedir
testified that she had not attempted to renew her Ethiopian passport because the
Ethiopian government had issued a new form which required a renewal applicant to
disclose her father’s nationality, and she did not believe that the Ethiopian government
would renew her passport upon finding out that her father was of Eritrean origin.
Kedir’s passport was admitted into evidence, and it was stamped as renewed by the
Ethiopian Embassy in Washington, D.C., in August 1999, valid until August 2001.
Based on this fact, the IJ found Kedir generally not credible, concluding (1) the
renewal stamp discredited her testimony that she did not apply for a passport renewal,
and (2) the Ethiopian government’s renewal of the passport, well after the start of the
Ethiopian-Eritrean conflict, undermined Kedir’s claim that the government would not
renew her passport on account of her Eritrean origin.
We review an IJ’s findings regarding asylum eligibility under a substantial-
evidence standard and we generally defer to an IJ’s credibility finding when it is
supported by specific, cogent reasons for disbelief. See Eta-Ndu v. Gonzales, 411
F.3d 977, 982 (8th Cir. 2005). Here, the IJ’s adverse credibility determination is not
entitled to deference because it is based on an erroneous evaluation of Kedir’s
testimony regarding the passport renewal issue. That is, the IJ seemed to believe that
Kedir was testifying that she had never renewed her passport, yet a careful evaluation
of the testimony shows otherwise. Kedir did not testify that she had never sought a
renewal, rather in response to the IJ’s questioning as to whether her passport was “still
good today,” she testified that she had not attempted to renew her passport after the
Ethiopian government had begun using a form that would identify her Eritrean
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ancestry. Furthermore, we note that Kedir did disclose in her asylum application that
her passport was valid until August 2001. See Georgis v. Ashcroft, 328 F.3d 962,
968-70 (7th Cir. 2003) (although review of IJ’s credibility determination is “highly
deferential,” appeals court “will not automatically yield to the IJ’s conclusions when
they are drawn from insufficient or incomplete evidence”; vacating and remanding
where five of six reasons given by IJ for discrediting alien were unsupported); El
Moraghy v. Ashcroft, 331 F.3d 195, 205 (1st Cir. 2003) (although IJ’s credibility
determinations are entitled to deference, that deference is conditioned on support in
record).
The IJ also found that Kedir did not demonstrate that she had a subjectively and
objectively reasonable fear of future persecution in Ethiopia. The IJ noted that the
State Department’s 2002 Country Report on Human Rights Practices in Ethiopia
indicated that Ethiopians of Eritrean origin were still “discriminated against” by being
denied the right to vote and access to free medical care if indigent, and observed that
this type of discrimination, when executed by a government, could rise to the level of
persecution. Nevertheless, the IJ stated he would not address whether the reported
discrimination rose to the level of persecution, because Kedir was not credible and she
had not established with credible evidence that she is of Eritrean origin or that the
government would identify her as such. We therefore conclude that the IJ’s adverse
credibility finding--which we have determined was predicated on erroneous logic--
also infected the IJ’s inquiry as to whether Kedir had a reasonable fear of future
persecution. See Dong v. Gonzales, 421 F.3d 573, 579 (7th Cir. 2005) (remanding
because lack of support for IJ’s credibility determination “makes it difficult to
evaluate the remaining reasons [IJ] gave for denying [asylum] claim”); Palavra v. INS,
287 F.3d 690, 693 (8th Cir. 2002) (if agency decides case on ground believed by
appellate court to be wrong, case must be remanded to agency to reconsider its
decision).
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Kedir has waived any challenge to the denial of withholding of removal and
CAT relief by not raising those issues in her opening brief. See Alyas v. Gonzales,
419 F.3d 756, 760 (8th Cir. 2005). And we reject her arguments that the IJ erred in
taking administrative notice of the 2002 Country Report, see Medhin v. Ashcroft, 350
F.3d 685, 690 (7th Cir. 2003) (IJ may take administrative notice of changed country
conditions), and that the BIA erred in affirming without opinion, see Ngure v.
Ashcroft, 367 F.3d 975, 981-88 (8th Cir. 2004) (decision whether to employ
affirmance-without-opinion procedure in particular case is committed to agency
discretion and not subject to judicial review).
For the reasons stated, we grant the petition for review, vacate the IJ’s and the
BIA’s decisions, and remand the case to the BIA with instructions to remand to the
IJ for further proceedings consistent with this opinion.
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