Tekle v. Mukasey ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ETAGEGN HAILE TEKLE, 
Petitioner, No. 05-76841
v.
 Agency No.
A97-369-313
MICHAEL B. MUKASEY,* Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
January 18, 2008—San Francisco, California
Filed July 18, 2008
Before: John T. Noonan, William A. Fletcher, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge William A. Fletcher
*Michael B. Mukasey is substituted for his predecessor, Alberto R.
Gonzales, as Attorney General of the United States, pursuant to Federal
Rule of Appellate Procedure 43(c)(2).
8903
8906 TEKLE v. MUKASEY
COUNSEL
Kate Bushman, Jones Day, New York, New York, Etagegn
Haile Tekle, pro se, Las Vegas, Nevada, for the petitioner.
Andrew B. Insenga, US Department of Justice, OIL, Wash-
ington, D.C., for the respondent.
OPINION
W. FLETCHER, Circuit Judge:
Etagegn Haile Tekle petitions for review of a decision of
the Board of Immigration Appeals (“BIA”) affirming the
Immigration Judge’s (“IJ”) denial of her application for asy-
lum, withholding of removal, and relief under the Convention
Against Torture. Because we find that the BIA’s adverse cred-
ibility determination was not based on substantial evidence,
we grant the petition and remand to the BIA for further pro-
ceedings.
TEKLE v. MUKASEY 8907
I. Background
Tekle is a citizen of Ethiopia and a member of the Oromo
racial group. Her husband is also a citizen of Ethiopia and an
Oromo. Tekle entered the United States on February 23, 2003
with a valid B-2 visitor’s visa. She applied for asylum on Feb-
ruary 12, 2004.1 Her application was referred to an IJ, who
conducted a merits hearing on July 22, 2004. At that hearing,
Tekle testified that security agents of the Ethiopian govern-
ment had arrested and tortured her on account of her active
membership in the Oromo Liberation Front (“OLF”), a politi-
cal organization that supports independence for the Oromo
people. Her brother, a lawful permanent resident of the United
States, testified on her behalf.
We observe that immediately prior to Tekle’s testimony,
the IJ offered the following comment for the record:
I have one other comment, and again, I don’t care if
the 9th Circuit wants to report this to my supervisor.
The 9th Circuit does not comply with Supreme Court
law with regard to asylum. While I am in the 9th Cir-
cuit and have to comply, I do note that they don’t
really care what Immigration [J]udges do. If an
Immigration [J]udge makes an adverse credibility
determination, they will, in only one case out of
every 250 to 300, affirm it. So I don’t play their
game with regard to credibility determinations. In
my view, an asylum merits hearing is analyzed on
the basis of whether the claim itself is credible as
opposed to testimony because that’s really the, the
strength of it, because it’s very rare that an Immigra-
tion [J]udge can make and have withstand either
with the Board or with the 9th Circuit, under applica-
1
The potentially relevant provisions of the REAL ID Act are not retro-
active and therefore do not apply to Tekle’s claim. See Kaur v. Gonzales,
418 F.3d 1061, 1064 n.1 (9th Cir. 2005).
8908 TEKLE v. MUKASEY
ble 9th Circuit case law, an adverse credibility deter-
mination.
To clarify the record, we note that the IJ’s assertions about
this court’s review of adverse credibility findings, even under-
stood as hyperbole, are incorrect. According to statistics pro-
vided by the Ninth Circuit Staff Attorneys’ Office, in asylum
cases decided between January 2005 and March 2008 the
Ninth Circuit affirmed approximately 80% of all adverse
credibility findings.2 Cases such as this one, in which the
Ninth Circuit reverses an IJ’s adverse credibility finding, are
the exception, rather than the rule.
On direct examination, Tekle testified that on October 12,
2002, security agents of the Ethiopian government arrested
her and took her to the central jail in Addis Ababa. She testi-
fied that when she first arrived at the jail, an officer interro-
gated her and then took her to a small cell with approximately
twenty other women, several of whom were also OLF mem-
bers. Early in the hearing, Tekle’s attorney focused on the
subsequent interrogations:
Q: What happened to you? Were you interrogated
again?
A: I was, I was told that I was needed for investi-
gation and I was tortured. They beat me in my
feet.
Q: What do you mean, they beat on your feet?
A: They—I was put in this position where they
would put a rod between my two legs behind
my knees and they flipped my, the inside of my
—the bottom of my feet, they flipped it, so it
would be exposed and they beat me there.
2
This figure includes cases not selected for oral argument.
TEKLE v. MUKASEY 8909
Q: What did they beat you with?
A: Electric wires.
Q: How long was the beatings [sic]?
A: I don’t recall for how long, but I remember I
was yelling and screaming and the guy was say-
ing, why don’t you die.
Q: Did they tell you why they were beating you?
A: They asked me about my husband’s where-
abouts and if we had weapons.
Tekle’s attorney then briefly digressed to allow Tekle to
explain that her husband was also an active OLF member. He
then resumed his questions about the interrogation:
Q: How many times did they beat you?
A: I cannot quantify it in hours, but they were just
continuously beating me.
Q: Okay. Did you tell them what they wanted?
A: No, I did not. I told them I did [not] know any-
thing. I, I feared that if I g[a]ve them any infor-
mation, it would exacerbate my situation.
Tekle then testified that her father posted bail and paid
bribes for her release, and that when she was discharged on
October 26, 2002, she was told that if she were “ever caught
participating in [Oromo] activities,” they would “put [her] in
jail forever.” She testified that since her arrival in the United
States, she learned from her mother that her father “had to
bear a lot of suffering” because “he was accused of letting his
8910 TEKLE v. MUKASEY
daughter . . . flee the country after posting bail and he was
interrogated regarding [Tekle’s] husband’s whereabouts.”
On cross examination, the government’s attorney asked
Tekle how many times she had been questioned during her
fourteen days of detention, and she replied that she had been
interrogated three times. The attorney then asked about the
nature of those interrogations:
Q: And all three times they questioned you, did
they physically touch you?
A: No, only one occasion.
Q: Okay. So, on one occasion they physically
touched you?
A: Yes. They beat the sole of my feet until it’s
swollen.
Q: Okay. And how long did they beat the soles of
your feet?
A: For a long period of time.
Q: Okay. What does that mean? I’m not sure what
a long period means.
A: I’m not sure for how long or for how many
hours, but the whole thing, I know, took hours
and I was screaming and I was in a lot of stress.
Q: They questioned you for hours?
A: They would question me, stop and then ques-
tion me and that took some time. And they
asked me to identify our leader.
TEKLE v. MUKASEY 8911
Q: Okay. So besides the question of identify your
leader, what other question would they ask you?
A: The other questions were—mostly they would
be . . . questions like, what did your husband
do, what was his activity, did you guys have
weapons, where are you hiding them. Stuff like
that.
Next, the IJ questioned Tekle. In response to one of the IJ’s
questions, Tekle stated that officials “put [her] father in custo-
dy” because she had fled the country. She also testified that
the government initiated its current campaign against the OLF
in the fall of 2001. The IJ then returned to the topic of Tekle’s
interrogations, asserting that she had testified on direct exami-
nation that her torture had “occurred continuously during the
time that [she was] detained for two weeks,” while
Q: [W]hen the[y] asked you this morning, how
many times it occurred, you said that they only
tortured you once for several hours. So, what’s
correct? You were tortured by the electric wires
under the feet—underneath the soles of your
feet on a continuous regular basis, one time,
many times. What, what’s, what is an accurate
answer?
A: I said on one occasion and it happened for sev-
eral hours.
Q: All right. So then, why did you say to your
attorney it was continuous during the time that
you were detained. They’re not consistent. Can
you explain that to me?
A: If I said continuous, I’m relating to the one
occasion. The beating was continuous at the
specific time, but I did not say at different days.
8912 TEKLE v. MUKASEY
Tekle also testified on direct examination that her husband
had disappeared and that she “still d[id] not know his current
whereabouts.” She added on cross examination that he had
been involved in OLF activities for a long time. She testified
that he went into hiding after learning of her arrest. She stated
that after she fled the country, he came out of hiding to visit
their children, and was subsequently arrested and detained.
On re-cross examination, the government’s attorney asked
Tekle about her birth certificate, which she had obtained in
July 2002, prior to her arrest. Tekle stated that she obtained
the document because she “was coming [to the United States]
and [she] thought that [she] needed the document here for
identity purposes.” The attorney pressed her on the timing of
events:
Q: Why would you be coming to the United States
before you were arrested?
A: Because the conditions in the country had dete-
riorated. There were rampart [sic] arrests that
are occurring to others like me and I d[id]n’t
want to face the same fate as the others.
Q: So now you’re saying that you’[d] already
decided to come to the United States before you
were arrested.
A: Yes, I ha[d] plans to escape the country before
my arrest.
Q: When is [it] that you formed these plans?
A: When there were rampart [sic] arrests. There
were arrests of others within our organization,
those who were leaders of the meetings.
Tekle’s brother, who had been excluded from the hearing
room during Tekle’s testimony, then testified. On cross exam-
TEKLE v. MUKASEY 8913
ination, he testified that Tekle had spoken with him about
leaving Ethiopia and coming to the United States prior to her
arrest. He testified that she did so “[b]ecause she was
involved and her husband was active and the situation there
was very dangerous.” He testified that after Tekle’s release
from jail, they had “to accelerate the process” of Tekle leav-
ing the country “because at that time, I, myself, felt that she
was facing death.” The IJ then asked him what he knew of the
treatment of his family members since Tekle had left Ethio-
pia. The brother stated that the government had “threatened
my father, they told him, that they assisted her to leave the
country even though she was under government . . . deten-
tion.” The IJ then asked whether “your father, your mother,
or any of your brothers ever [was] arrested and detained after
she came here to the United States?” He replied, “As far as
I know, no one was arrested, but I know my father was ques-
tioned.”
The IJ stated that he denied Tekle’s application for relief
because he found that her testimony was not credible. In mak-
ing this adverse credibility finding, the IJ explicitly “ac-
knowledge[d] and, indeed, . . . embrace[d], numerous
discussions in [two country reports in the record] about the
anti-Oromo attitude of the government, the fact of arrests and
detention without warrant, and very bad human rights abuses
in prisons in Ethiopia by the present government of Ethiopia.”
The IJ referred to specific pages in those country reports.
Those pages contain the following information of particular
relevance to Tekle’s claim: “The [Ethiopian] Government
continued to arrest and detain persons arbitrarily, particularly
those suspected of sympathizing with or being members of
the OLF.” U.S. Department of State, Ethiopia: Country
Reports on Human Rights Practices 2003 (Feb. 25, 2004).
“Security forces committed a number of unlawful killings and
at times beat, tortured, and mistreated detainees.” Id. “Thou-
sands of criminal suspects remained in detention without
charge; many of the detainees were accused of involvement
in OLF activities[.]” Id. After violent altercations with stu-
8914 TEKLE v. MUKASEY
dents in March and April 2002, “[p]olice subsequently
arrested several hundred students, teachers, and others whom
it accused of being members or sympathisers of the [OLF], an
armed movement that the government claimed had instigated
the student protests.” Country Information & Policy Unit of
the Home Office (U.K.), Ethiopia Country Report (Oct.
2003).
Since the Government banned the OLF a decade
before, thousands of alleged OLF members or sym-
pathisers have been arrested, and this trend contin-
ued in 2002. As of March 2002, more than 1,700
such prisoners were reportedly held at the Ghimbi
central prison, half of them arrested recently and the
rest having been there for five to ten years, some
without charge . . . . Prisoners who were released or
escaped from incarceration reported being severely
tortured whilst imprisoned.
Id.
The IJ offered eight reasons in support of his adverse credi-
bility finding. In the alternative, the IJ also determined,
“[a]ssuming that the Court would find credible and truthful
the testimony of the respondent,” that Tekle had “not demon-
strated severe past persecution.” The IJ further found that
Tekle had satisfied the subjective standard for future persecu-
tion, but that her fear of harm was the result of “general con-
ditions of violence and civil unrest in” Ethiopia, and did not
constitute a well-founded fear of persecution. Consequently,
the IJ found that Tekle was ineligible for asylum and with-
holding of removal. The IJ found that Tekle had failed to
demonstrate that it was more likely than not that she would
be tortured by the government if she were to return to Ethio-
pia, and that therefore she was not entitled to relief under the
Convention Against Torture. The IJ granted Tekle voluntary
departure.
TEKLE v. MUKASEY 8915
The BIA held that the IJ’s “adverse credibility finding
[wa]s not clearly erroneous.” The BIA stated that the IJ “iden-
tified specific inconsistencies and discrepancies that are sup-
ported by the record, are central to [Tekle’s] claim that she
was persecuted on account of her activities with the Oromo
Liberation Front, and were not adequately explained.” The
BIA, in so affirming, referred to only four of the IJ’s eight
articulated grounds for the adverse credibility finding. The
BIA identified those four grounds as “[m]ost significant[,]”
and provided citations to the record in support of those rea-
sons. The BIA did not mention the other four grounds. The
BIA then added that, “[i]n view of the decision regarding the
respondent’s credibility, we need not address [Tekle’s] argu-
ments pertaining to the [IJ’s] alternate finding that the treat-
ment she claimed to have endured did not rise to the level of
persecution.” The BIA also affirmed the IJ’s grant of volun-
tary departure. Tekle timely appealed the final decision of the
BIA.
II. Standard of Review
The BIA did not conduct a de novo review of the IJ’s deci-
sion, cf. Krotova v. Gonzales, 416 F.3d 1080, 1084 (9th Cir.
2005), but instead reviewed the IJ’s decision for clear error,
see Rivera v. Mukasey, 508 F.3d 1271, 1274 (9th Cir. 2007).
The BIA stated “with sufficient particularity and clarity the
reasons for denial of asylum” and did not merely provide a
“[b]oilerplate opinion[.]” Castillo v. INS, 951 F.2d 1117, 1121
(9th Cir. 1991). In conducting its clear error review, the BIA
“relie[d] upon the IJ’s opinion as a statement of reasons.”
Kozulin v. INS, 218 F.3d 1112, 1115 (9th Cir. 2000). We
therefore “look to the IJ’s oral decision as a guide to what lay
behind the BIA’s conclusion.” Id. In so doing, we review here
the reasons explicitly identified by the BIA, and then examine
the reasoning articulated in the IJ’s oral decision in support of
those reasons. Cf. Rivera, 508 F.3d at 1275 (“When the BIA
has reviewed the IJ’s decision and incorporated parts of it as
its own, we treat the incorporated parts of the IJ’s decision as
8916 TEKLE v. MUKASEY
the BIA’s.”). Stated differently, we do not review those parts
of the IJ’s adverse credibility finding that the BIA did not
identify as “most significant” and did not otherwise mention.
“We review the BIA’s findings of fact, including credibility
findings, for substantial evidence and must uphold the BIA’s
finding unless the evidence compels a contrary result.”
Almaghzar v. Gonzales, 457 F.3d 915, 920 (9th Cir. 2007)
(internal quotation marks omitted); see 8 U.S.C.
§ 1252(b)(4)(B). Under this deferential standard of review,
“the IJ or BIA must identify specific, cogent reasons for an
adverse credibility finding, and the reasons must . . . . strike
at the heart of the claim for asylum.” Singh v. Gonzales, 439
F.3d 1100, 1105 (9th Cir. 2006) (internal quotation marks and
citations omitted). “Minor inconsistencies that reveal nothing
about an asylum applicant’s fear for her safety are not an ade-
quate basis for an adverse credibility finding.” Kaur v. Ash-
croft, 379 F.3d 876, 884 (9th Cir. 2004) (internal quotation
marks and brackets omitted). “An IJ must . . . afford petition-
ers a chance to explain inconsistencies, and must address
these explanations.” Singh, 439 F.3d at 1105.
III. Discussion
The BIA affirmed the IJ based on only four of the reasons
the IJ provided in support of his adverse credibility finding.3
3
The BIA had good reason to decline to rely on the IJ’s other four
grounds. Those grounds were as follows:
First, the IJ concluded that Tekle “deferred, delayed, or hesitated before
responding to certain of questions.” The IJ’s demeanor finding is not sup-
ported by substantial evidence. The IJ did not “specifically and cogently
refer to any aspect of [Tekle’s] demeanor,” Arulampalam v. Ashcroft, 353
F.3d 679, 686 (9th Cir. 2003), and did “not identify specific examples of
evasiveness or contradiction in [Tekle’s] testimony,” Garrovillas v. INS,
156 F.3d 1010, 1013 (9th Cir. 1998). The IJ also failed to identify any spe-
cific examples of non-verbal behavior that might suggest that Tekle was
not credible. See Jibril v. Gonzales, 423 F.3d 1129, 1137 (9th Cir. 2005);
cf. Singh-Kaur v. INS, 183 F.3d 1147, 1151 (9th Cir. 1999).
TEKLE v. MUKASEY 8917
“We independently evaluate each ground cited by the IJ for
his adverse credibility findings.” Chen v. Ashcroft, 362 F.3d
611, 617 (9th Cir. 2004). “So long as one of the identified
grounds is supported by substantial evidence and goes to the
heart of [the] claim of persecution, we are bound to accept the
IJ’s adverse credibility finding.” Wang v. INS, 352 F.3d 1250,
1259 (9th Cir. 2003). We conclude that the BIA has failed to
provide “specific, cogent reasons” in support of the adverse
credibility finding. Therefore, the adverse credibility finding
is not supported by substantial evidence.
The four grounds upon which the BIA relied were as fol-
lows:
A. Duration of Torture
[1] First, the IJ found that Tekle’s testimony was internally
inconsistent with respect to the duration of her torture. The IJ
asserted that
Second, the IJ stated that Tekle’s testimony was inconsistent with an
OLF document indicating the year in which she joined the OLF. The IJ’s
finding is factually erroneous. The confusion stems from a translation that
failed to translate a date appearing in the Ethiopian calendar into its corre-
sponding date in the western calendar. Wang v. INS, 352 F.3d 1250, 1254
(9th Cir. 2003); Gui v. INS, 280 F.3d 1217, 1225 (9th Cir. 2002); He v.
Ashcroft, 328 F.3d 593, 598 (9th Cir. 2003).
Third, the IJ concluded that it was implausible that Tekle was not
arrested again after her release from custody. This finding is based on
impermissible speculation. Singh v. Gonzales, 439 F.3d 1100, 1105 (9th
Cir. 2006); Wang, 352 F.3d at 1255. Tekle testified that she would face
imprisonment only if she violated the terms of her release by participating
in “Oromo activities.” After she was released from prison, she went into
hiding and did not participate in any such activities. Therefore, Tekle did
nothing to prompt the government to re-arrest her.
Fourth, the IJ speculated that because Tekle applied prior to, but near,
the one-year asylum filing deadline, her asylum claim was not credible.
The IJ’s finding is not supported by logic, much less substantial evidence
in the record. Tekle and her brother also provided consistent and reason-
able explanations for the time it took Tekle to prepare her application. The
IJ failed to address those explanations. Kaur v. Ashcroft, 379 F.3d 876,
887 (9th Cir. 2004).
8918 TEKLE v. MUKASEY
On direct examination today, the respondent stated
that she was “continuously tortured during the two-
week detention.” During cross examination, the
respondent stated that she was beaten on the soles of
her feet on one occasion only for several hours.
When the Court sought to give to the respondent the
opportunity to clarify this inconsistency or discrep-
ancy, she simply stated that she saw no inconsis-
tency between . . . her testimony on direct or
testimony on cross.
The IJ’s conclusion is based on the IJ’s and the government
attorney’s misrepresentation of Tekle’s testimony.
[2] Tekle never testified or even suggested that she had
been beaten throughout her two-week detention. Rather, when
her attorney was questioning her about one particular interro-
gation during those two weeks, she responded that she could
not “quantify it in hours, but they were just continuously beat-
ing me.” The IJ subsequently represented to Tekle that she
had “said that this [torture] occurred continuously during the
time that you were detained for two weeks.” Tekle responded,
consistently with her earlier testimony, that she had “said on
one occasion and it happened for several hours.” When the IJ
asked her to explain why she had said “it was continuous dur-
ing the time that you were detained,” Tekle replied, “If I said
continuous, I’m relating to the one occasion. The beating was
continuous at the specific time, but I did not say at different
days.” The IJ simply misunderstood, or misremembered, the
context in which Tekle used the word “continuously.”
B. Subject Matter of Interrogations
[3] Second, the IJ found that Tekle’s testimony contra-
dicted her asylum application. Her application stated that she
and three other OLF detainees in her cell were “interrogated,
tortured and beaten by the police about our knowledge and
upper contacts with the OLF organization.” The IJ concluded
TEKLE v. MUKASEY 8919
that this statement in her application was inconsistent with her
testimony:
During questioning today, the respondent stated
that the questioning of the respondent was focused
on predominantly two considerations, involving the
respondent and her husband in OLF activities and
whether they had possession and control of weapons
to use against the government.
During questioning by Government counsel today,
on cross-examination, the respondent reiterated that
when she was detained, she was asked about her
activities and those of her husband in the OLF. She
was also asked whether any other issues were asked
of her or any other information during her question-
ing, to which she replied in the negative. When the
Court questioned the respondent on what was
addressed during her questioning, she merely stated
that she was asked about her activities and those of
her husband in the OLF. Clearly, her testimony
today is not consistent with the statement that was
prepared in tandem with her asylum application, that
the focus was on the OLF as an organization and her
knowledge and that of other cell mates on the upper
echelon of the OLF.
[4] The IJ mischaracterized Tekle’s testimony as stating
that her interrogators merely “asked about her activities and
those of her husband in the OLF.” Tekle stated that her inter-
rogators asked her “to identify our leader,” and “questions
like, what did your husband do, what was his activity, did you
guys have weapons, where are you hiding them. Stuff like
that.” Moreover, the IJ failed to afford Tekle a chance to
explain this purported inconsistency. Had she been given such
an opportunity, she might have reiterated that she had been
asked to identify her OLF leader, or she might have provided
information about the interrogations of her cell mates. She
8920 TEKLE v. MUKASEY
also might have explained that her interrogators did not ques-
tion her further about the “upper echelon of the OLF” because
she “told them I did [not] know anything. I, I feared that if I
give them any information, it would exacerbate my situation.”
The IJ’s failure to provide Tekle with an opportunity to
explain this perceived inconsistency is legal error. Therefore,
this purported inconsistency cannot form the basis for an
adverse credibility finding. See Chen, 362 F.3d at 618.
C. Father’s Detention
Third, the IJ found that Tekle’s testimony was not consis-
tent with her brother’s testimony with respect to whether their
father had been arrested or detained. The IJ stated:
[T]he respondent in her testimony today stated that
after she left Ethiopia because her father had assisted
her and allowed her to depart the country despite the
purported outstanding warrant or order that she be
available to come back for further questioning, by
virtue of her father’s acquiescence to her departing
the country that he was threatened and he was, on at
least one occasion, detained and interrogated by the
government, versus the testimony of her brother,
who stated that he also has remained in regular con-
tact with his family and through which he stated, that
through his knowledge, except for “harassment” that
no member of the family had been arrested and
detained since his sister came to the United States in
February 2003.
[5] Contrary to the IJ’s finding, Tekle’s testimony was con-
sistent with her brother’s testimony. Tekle testified that she
had learned that officials had “put my father in custody” and
that they had “interrogated” him. Her brother testified that
“[a]s far as I know, no one was arrested, but I know my father
was questioned.” Neither sibling claimed that the father had
been arrested. Tekle’s brother was never asked whether the
TEKLE v. MUKASEY 8921
father had been detained or taken into custody. In the U.S.
criminal justice system, Fourth Amendment jurisprudence
tends to equate “custody” and “arrest,” see, e.g., Stansbury v.
California, 511 U.S. 318, 322 (1994) (concluding that in
determining whether a person is “in custody” for Miranda
purposes, a court must determine whether there had been
either a formal arrest or a “restraint on freedom of movement
of the degree associated with a formal arrest” (internal quota-
tion marks omitted)), but there is no inconsistency when lay
witnesses speaking of police practices in another legal system
state that a person was placed “in custody” and “interrogated”
or “questioned,” without being “arrested.” Indeed, even our
own legal system recognizes a linguistic distinction between
a “formal arrest” and other restraints on freedom of move-
ment of a degree that would be “associated with a formal
arrest.” Id.
[6] Even if we assume for the sake of argument that the dis-
tinctions between the two accounts would have carried some
weight if both Tekle and her brother had purported to have
first hand knowledge of their father’s treatment, here the dis-
crepancies between their reports fail to strike at the heart of
Tekle’s claim. The fact that one family member was told one
set of facts, while another family member was told a slightly
different set of facts, does not make either family member less
credible. We also note that the IJ failed to provide Tekle with
an opportunity to explain this purported inconsistency.
[7] Both Tekle and her brother qualified their testimony
regarding their father as hearsay. If there is no reason to doubt
that a third party told the witness particular things, and if there
is no reason to doubt that the witness sincerely believed that
third party, then the fact that the IJ later doubts the veracity
of the third party’s story should not, under ordinary circum-
stances, form the basis for an adverse credibility finding.
Indeed, if the IJ challenges the third party’s story as not credi-
ble, the witness may not have access to the facts necessary to
provide an explanation.
8922 TEKLE v. MUKASEY
D. Timing of Decision to Flee Ethiopia
Fourth, the IJ found that Tekle’s testimony was internally
inconsistent, as well as inconsistent with her asylum applica-
tion, regarding the timing of her decision to flee Ethiopia. The
IJ stated:
[I]n her statement attached to her asylum applica-
tion, . . . and on direct examination, the respondent
was emphatic that after her detention and release in
October 2002, she made the decision to leave Ethio-
pia for the United States. By contrast, during re-cross
examination by counsel, it was disclosed for the first
time and subsequently when her brother testified
that, in fact, she had made the decision as early as
the summer of 2002 to depart Ethiopia for the United
States because of general conditions there, but not
necessarily limited to the treatment of members of
the Oromo group. The respondent has provided no
explanation for this omission in her statement versus
her testimony today.
. . . [T]he Court believes that it is relevant and per-
tinent to the inquiry that the respondent sought assis-
tance from her brother to leave Ethiopia well before
either she or her husband had any negative interac-
tion with the government[.]
The IJ concluded that it was “significant and persuasive and
not insignificant, that the determination of the respondent to
depart a country in turmoil, militarily and economically, blos-
somed well before the reported arrest and detention of Octo-
ber 2002.”
[8] Tekle consistently represented the timing of her deci-
sion to leave Ethiopia. She testified that the Ethiopian govern-
ment had begun a crackdown on its opponents in 2001, and
that many of the government’s targets were Oromos. When
TEKLE v. MUKASEY 8923
she was released from prison, the authorities told her that if
she ever participated in Oromo activities again, she would be
put in jail forever. Her asylum application stated that the con-
ditions of her release placed her in a “fearful mind,” and “[t]o
regain peaceful mind and security I decided to leave the coun-
try once for good.” (Emphasis added.) She never stated or
even suggested that she had never considered leaving Ethiopia
prior to her arrest.
When the government’s attorney confronted her about the
fact that she had obtained her birth certificate in July 2002,
prior to her detention, Tekle explained that she had been plan-
ning to come to the United States prior to her arrest
“[b]ecause the conditions in the country had deteriorated.
There were rampart [sic] arrests that [we]re occurring to oth-
ers like me and I d[id]n’t want to face the same fate as the
others.” Her brother’s testimony, which the IJ found to be
credible, corroborated Tekle’s explanation. He confirmed that
Tekle had expressed her desire to leave Ethiopia prior to her
arrest, “[b]ecause she was involved and her husband was
active and the situation there was very dangerous.” He testi-
fied that after Tekle’s release from prison, “we have to accel-
erate the process for her, because at that time, I, myself, felt
that she was facing death. . . . I tried to get involved in a hasty
fashion.”
[9] Moreover, the IJ erroneously failed to address Tekle’s
explanation. Kaur, 379 F.3d at 887 (“An adverse credibility
finding is improper when an IJ fails to address a petitioner’s
explanation for a discrepancy or inconsistency.”). Instead, he
suggested that Tekle was not credible because prior to her
arrest she was already fearful and had the foresight to make
some initial departure plans. Tekle’s fear that her OLF activi-
ties would prompt the police to target her for persecution was
subsequently confirmed. Country reports also corroborate the
basis for that fear. The evidence compels us to conclude that
Tekle’s representations about when she decided to flee Ethio-
8924 TEKLE v. MUKASEY
pia were not inconsistent and were not a proper basis for the
IJ’s adverse credibility finding.
Conclusion
[10] We conclude that the BIA’s adverse credibility deter-
mination is not supported by substantial evidence. See Lolong
v. Gonzales, 484 F.3d 1173, 1178 (9th Cir. 2007) (en banc).
Because “each of the . . . BIA’s proffered reasons for [its]
adverse credibility finding fails, we must accept [Tekle’s] tes-
timony as credible.” Marcos v. Gonzales, 410 F.3d 1112,
1116 (9th Cir. 2005) (internal quotation marks omitted).
After concluding that Tekle was not credible, the IJ stated,
“if the BIA disagrees with the Court, then the BIA is com-
pelled to grant asylum to the respondent.” Then, however, the
IJ concluded that, even crediting Tekle’s testimony as true,
she was not eligible for asylum or entitled to other relief.
Under INS v. Ventura, after determining that an adverse
credibility finding is not supported by substantial evidence,
we ordinarily remand to the BIA to “make the basic asylum
eligibility decision.” 537 U.S. 12, 16 (2002) (per curiam).
Guo v. Ashcroft, 361 F.3d 1194, 1203-04 (9th Cir. 2004), sug-
gests that where, as here, the IJ finds in the alternative that the
petitioner is not eligible for asylum, “we are not required to
remand under Ventura for a determination on that issue.” See
also Almaghzar, 457 F.3d at 923 n.11 (“Ventura and Thomas
require that we remand when the agency has not yet consid-
ered the issue. But we here hold that the IJ and BIA decided
the merits of Almaghzar’s [Convention Against Torture]
claim, with the benefit of the country condition reports
Almaghzar introduced into evidence, and the IJ generally said
that he had considered all evidence. Neither Ventura nor
Thomas require[s] us to remand an issue to the agency when
the agency has already considered the issue.”). However, in
Guo and Almaghzar the BIA had affirmed the IJ’s decision in
TEKLE v. MUKASEY 8925
its entirety. See Almaghzar, 457 F.3d at 919-20, 923 n.11;
Guo, 361 F.3d at 1199.
[11] We hold that where, as here, the IJ has made an
adverse credibility finding and has also concluded in the alter-
native that petitioner is ineligible for asylum or other relief,
and the BIA has affirmed on the basis of the IJ’s adverse cred-
ibility finding, but has specifically declined to reach the issue
of eligibility for asylum and other relief, we must remand
under Ventura. The agency has not made a final determination
of Tekle’s eligibility for asylum or entitlement to withholding
of removal or relief under the Convention Against Torture.
We must not make that determination ourselves, absent some
“special circumstance . . . that might . . . justif[y] the Ninth
Circuit’s determination of the matter in the first instance.”
Gonzales v. Thomas, 547 U.S. 183, 187 (2006) (per curiam);
see also Chen, 362 F.3d at 622 (noting that the Ninth Circuit
has recognized only two such “rare” exceptions). A Ventura
remand is particularly necessary here, in light of the IJ’s con-
tradictory statements about Tekle’s eligibility for asylum.
If the BIA determines that an IJ must conduct additional
fact finding, we suggest that the BIA remand to a different IJ.
See Arulampalam v. Ashcroft, 353 F.3d 679, 688-89 (9th Cir.
2003); Paramasamy v. Ashcroft, 295 F.3d 1047, 1055 n.4 (9th
Cir. 2002); Garrovillas v. INS, 156 F.3d 1010, 1016 n.4 (9th
Cir. 1998); see also Zehatye v. Gonzales, 453 F.3d 1182,
1194-96 (9th Cir. 2006) (Berzon, J., dissenting). We note that
the IJ twice implored the BIA not to remand Tekle’s case to
him. The IJ stated that he “wishes to emphasize that if the
BIA disagrees with the Court, then the BIA is compelled to
grant asylum to the respondent. If the case, for any reason, is
remanded to the Court, the Court will recuse himself because
the Court has concluded that the respondent did not provide
truthful testimony today for her asylum application[.]” He
later stated:
Once again, the Court wishes to emphasize that if in
the view of the Board, the determination made by the
8926 TEKLE v. MUKASEY
Court in its analysis, either as to credibility or as to
eligibility for asylum is in error, then it behooves the
Board to make such a determination as opposed to
further remanding the matter. Since the responsibil-
ity of the Board is to hear and decide even if only on
the existing record, particularly where such a thor-
ough record has been made, not only on the basis of
the documentary evidence and the transcript, but this
herculean oral decision of well in excess of one hour
and 15 minutes by the Court today, in an effort to
show the seriousness with which the Court has taken
to heart recent advisals by the Board at our training
in June [2004] as to the inadequacy of most oral
decisions, particularly when it comes to adverse
credibility determinations.
For the foregoing reasons, we GRANT Tekle’s petition for
review and REMAND to the BIA for further proceedings con-
sistent with this opinion.