Fessehaye, Hanna H. v. Gonzales, Alberto R.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3933
HANNA H. FESSEHAYE,
Petitioner,
v.
ALBERTO R. GONZALES,
United States Attorney General,
Respondent.
____________
Petition for Review of an Order of
the Board of Immigration Appeals.
No. A78-356-582
____________
ARGUED JANUARY 7, 2005—DECIDED JULY 8, 2005
____________
Before POSNER, RIPPLE and ROVNER, Circuit Judges.
RIPPLE, Circuit Judge. The Immigration and Naturalization
Service (“INS”) brought removal proceedings against
Eritrean citizen Hanna Fessehaye. She filed an asylum claim
and application for withholding of removal, but obtained no
relief. She then brought a motion to reopen her case. See 8
U.S.C. § 1229a(c). In pertinent part, she alleged changed
circumstances in that she had become a Jehovah’s Witness
and consequently feared persecution because of her reli-
gious affiliation if sent back to Eritrea. She also asserted
2 No. 03-3933
that, if returned to Eritrea as a failed asylum seeker, she
would suffer persecution. The Board of Immigration
Appeals (the “BIA” or “Board”) denied her motion to reo-
pen. In its view, she had failed to present sufficient evidence
to make out a prima facie case for relief. Ms. Fessehaye now
petitions for review of that decision. For the reasons set
forth in the following opinion, we grant the petition and
remand the case to the BIA for further proceedings.
I
BACKGROUND
A. Facts
Ms. Fessehaye was born in the Ethiopian province of
Tigray, but relocated to the province of Eritrea to work as a
teacher. In the 1990s, Eritrea became independent following
an internationally-monitored referendum. Ms. Fessehaye
became a citizen of Eritrea by voting in that referendum.
Tensions between the newly independent nation and
Ethiopia escalated into armed conflict between 1998 and
2000; animosity between the two countries continues to this
day.
On August 22, 1998, Ms. Fessehaye entered the
United States on a six-month tourist visa. She remained in
the country beyond the expiration date of that visa. In
October 1998, she married Ghebregziabher Ghebremedhin,
another Eritrean citizen who also had entered the United
States on a tourist visa and had remained beyond its ex-
piration. The couple has two children who are citizens of the
United States, a son born in 1999 and a daughter born in
2001.
In 1998, the INS brought removal proceedings against Mr.
Ghebremedhin; he conceded that he was subject to deporta-
No. 03-3933 3
tion, but sought asylum. His asylum application was based
on past persecution and a fear of future persecution because
he is a Jehovah’s Witness—a church that is subject to
widespread persecution and distrust in Eritrea. The Immi-
gration Judge (“IJ”) denied his asylum application, and the
BIA affirmed. Mr. Ghebremedhin appealed to this court.
Meanwhile, Ms. Fessehaye applied to the INS for asylum.
In her application, she claimed to have a well-founded fear
of persecution. She based this claim on the fact that her life
history involved connections with both Ethiopia and Eritrea,
two sovereign countries that have been at war and now co-
exist in an environment of continuing distrust.
Ms. Fessehaye claimed that she faced persecution if re-
turned to Ethiopia because she had voted in the Eritrean
referendum and had become an Eritrean citizen. Similarly,
she believed that she would be persecuted if returned to
Eritrea because she was a native of Tigray, a province that
remained part of Ethiopia. Following a hearing, the IJ
denied Ms. Fessehaye’s request for asylum and her petition
for withholding of removal in February 2001. The BIA
affirmed without opinion in November 2002.
B. Motion to Reopen
Ms. Fessehaye did not seek review of the BIA’s decision,
but instead filed a timely motion to reconsider; the Board
denied that motion. She then filed a timely motion to reo-
1
pen, see 8 U.S.C. § 1229a(c)(7), and included supporting
1
At the time Ms. Fessehaye filed her motion, the provisions gov-
erning motions to reopen were found at 8 U.S.C. § 1229a(c)(6).
Congress recently amended § 1229a(c), see Emergency
Supplemental Appropriations Act for Defense, the Global War on
(continued...)
4 No. 03-3933
evidence and an updated asylum application as required by
2
8 C.F.R. § 1003.2(c). In her motion to reopen, Ms. Fessehaye
essentially raised four grounds for reopening. We shall
discuss each of her submissions and the BIA’s resolution.
First, Ms. Fessehaye submitted that, in light of our deci-
sion in Nwaokolo v. INS, 314 F.3d 303 (7th Cir. 2002), her
1
(...continued)
Terror, and Tsunami Relief, Division B—REAL ID Act of 2005,
Pub. L. No. 109-13, § 101(d), 119 Stat. 231, and as a result the
provision governing Ms. Fessehaye’s motion presently is located
at 8 U.S.C. § 1229a(c)(7). The REAL ID Act did not change the
substance of the former § 1229a(c)(6), and we therefore cite to the
provision as currently numbered.
2
A petition to reopen “must be accompanied by the appropriate
application for relief and all supporting documentation.” 8 C.F.R.
§ 1003.2(c)(1) (emphasis added). Ms. Fessehaye attached an up-
dated asylum request in order to comply with this requirement.
See A.R. at 20 (“I am making this application as part of my
Motion to Reopen my first request for asylum.”). The application
attached to her motion to reopen does not differ materially from
her first asylum request, the only differences being that (1) the
more recent application is made on the October 2001 revision of
Form I-589, (2) the updated application includes the new infor-
mation that Mr. Ghebremedhin’s case is before the BIA and that
the couple’s children are citizens of the United States, and (3) the
updated application refers the Board to affidavits establishing the
new facts forming the basis of Ms. Fessehaye’s motion to reopen.
At the time of her motion, regulatory provisions governing
motions to reopen and to reconsider were codified at 8 C.F.R.
§ 3.2. A reorganization in 2003 placed the provisions in their cur-
rent location at 8 C.F.R. § 1003.2. There are no differences be-
tween the former section 3.2 and the current section 1003.2 that
affect Ms. Fessehaye’s appeal, and, for ease of reference, we cite
to the current regulations.
No. 03-3933 5
daughter would be subject to female genital mutilation if
she returned to Eritrea with her mother. In support of this
claim, Ms. Fessehaye attached the State Department report
on human rights practices in Eritrea, see A.R. at 43; U.S.
Dep’t of State, Eritrea, in Country Reports on Human Rights
Practices—2001 (2002) (“2001 Country Report”). The Board
rejected this claim on the ground that the asserted danger
was not new and had been available at the time of her
hearing. The Board further found no statutory basis to
maintain a claim based on the fear of future harm to a child
and thus determined that Ms. Fessehaye could not make out
a prima facie case on this asserted basis for asylum.
Second, she claimed that she had adopted her husband’s
religion and was a practicing Jehovah’s Witness. Because of
this conversion, she feared religious persecution—essen-
tially the same religious persecution that her husband had
asserted as the basis for his asylum claim. In support of her
motion to reopen, Ms. Fessehaye included her own affidavit
in which she stated that she had been an Orthodox Christian
before her marriage, but had decided to convert to Jeho-
vah’s Witness after her marriage and participation in her
husband’s religious events. The affidavit further stated that
Ms. Fessehaye had not completed the final ritual for full
membership in the faith, and thus the church elders could
not provide additional evidence of her conversion within
the ninety-day time limit for filing a motion to reopen. See
8 C.F.R. § 1003.2(c)(2). Her affidavit continued to detail the
persecution faced by Jehovah’s Witnesses in Eritrea, which
she feared would be visited upon her and her children if she
3
returned to the country. She cited the persecution of
3
In particular, Ms. Fessehaye—and her husband in his pro-
ceedings—submitted that Jehovah’s Witness beliefs regarding
(continued...)
6 No. 03-3933
Jehovah’s Witnesses described in the 2001 Country Report.
The BIA rejected this claim because it determined that Ms.
Fessehaye had failed to present sufficient evidentiary
materials in support of her conversion. In particular, the
Board found insufficient her single affidavit because, in its
view, affidavits from her husband or church elders attesting
to her Jehovah’s Witness faith could have been obtained
easily.
Third, Ms. Fessehaye contended that the State Department
had recognized—in a report unavailable at the time of her
asylum hearing—that Eritrean citizens who return to the
country after failed attempts to obtain asylum abroad are
subject to investigation and are allowed to enter only on a
“case-by-case basis.” A.R. at 11; see id. at 51; 2001 Country
Report § 2.d (“Applications to return from citizens living
abroad who have . . . been declared ineligible for political
asylum by other governments, are considered on a case-by-
case basis.”). She claimed that, because she had sought
asylum in the United States, she would be investigated
upon her reentry to Eritrea; this investigation would in turn
3
(...continued)
military service would run afoul of Eritrea’s compulsory national
service requirements. Jehovah’s Witnesses may not serve in a
nation’s armed forces, but, as detailed in an Amnesty Interna-
tional press release, A.R. at 64, persons refusing to serve in Eritrea
could face penalties of three years’ imprisonment or even death.
In addition, Jehovah’s Witness beliefs regarding the service of
earthly governments mean that practitioners cannot recognize the
legitimacy of any “government[ ] of men.” Id. at 23. Because of
the Witnesses’ refusal to recognize the Eritrean government, Ms.
Fessehaye claimed that government authorities deeply distrusted
Jehovah’s Witnesses, often refusing to issue passports, food
rations or government housing and frequently imprisoning
practitioners.
No. 03-3933 7
lead to her arrest or detention because it would reveal her
religious beliefs, as well as her criticism of the Eritrean
4
government for forcing her mother out of the country.
In addition to the 2001 Country Report, Ms. Fessehaye also
attached an Amnesty International press release that de-
tailed the treatment of former asylum seekers who returned
to Eritrea. In rejecting this contention, the Board believed
that the 2001 Country Report and the Amnesty International
press release were insufficient evidence that Ms. Fessehaye
faced persecution as a former asylum seeker.
Fourth, Ms. Fessehaye reasserted in her affidavit, although
not in her motion, a ground raised in her previous asylum
application: that Eritrean authorities maintained a policy of
arresting ethnic Ethiopians and deporting them to Ethiopia.
She argued that “new reports” continued to be published
detailing this practice. A.R. at 24. The BIA dismissed this
contention as mere speculation, unsupported by the country
reports or other evidence.
Ms. Fessehaye now seeks review of the denial of her mo-
tion to reopen. More specifically, she asks that we review
the Board’s decision with respect to her contentions that she
has a well-founded fear of persecution because of her
religious conversion, her failed attempt to seek asylum and
the possibility of further deportation to Ethiopia. She does
not challenge the BIA’s determination of her derivative
female genital mutilation claim.
Before oral argument in this case, our court rendered its
decision on Mr. Ghebremedhin’s appeal. Ghebremedhin v.
4
In her initial asylum application, to establish past persecution
under 8 C.F.R. § 208.13(b)(1), Ms. Fessehaye offered evidence that
her mother had been forced from the country by Eritrean
authorities. In her motion to reopen, she claimed to fear persecu-
tion for speaking out against her mother’s treatment.
8 No. 03-3933
Ashcroft (“Ghebremedhin I”), 385 F.3d 1116 (7th Cir. 2004). In
Ghebremedhin I, we noted that Mr. Ghebremedhin presented
evidence of persecution “so compelling that no reasonable
factfinder could agree with the BIA’s decision” denying him
asylum. Id. at 1120. We thus reversed the BIA and remanded
with instructions to the Board to grant his asylum applica-
tion. Id. We subsequently modified the opinion by remand-
ing to the agency for further proceedings consistent with
Ghebremedhin I. Ghebremedhin v. Ashcroft (“Ghebremedhin II”),
392 F.3d 241, 244 (7th Cir. 2004). Having determined that
Mr. Ghebremedhin presented evidence “so compelling” that
no reasonable factfinder would have denied his application,
we must now resolve his wife’s appeal.
II
DISCUSSION
A. Standard of Review
The Board’s authority to grant or deny a motion to reopen
is discretionary; we therefore review deferentially its
5
decision for abuse of discretion. Motions to reopen are
5
Prior to 1996, “the authority for [motions to reopen] derive[d]
solely from regulations promulgated by the Attorney General.”
INS v. Doherty, 502 U.S. 314, 322 (1992). Passage of the Illegal
Immigration Reform and Immigrant Responsibility Act
(“IIRIRA”) of 1996, Pub. L. No. 104-208, 110 Stat. 3009, 3009-546,
amended the Immigration and Nationality Act to include statu-
tory requirements for a motion to reopen. 8 U.S.C. § 1229a(c)(7).
Following IIRIRA, the INS amended its regulations to the
current form. Both the prior and current regulations emphasize
that the decision to reopen rests, within certain restrictions, with
the BIA. See Doherty, 502 U.S. at 323 (noting that 8 C.F.R. § 3.2(continued...)
No. 03-3933 9
comparable to motions for rehearing or for a new trial, and
thus are “strongly disfavored.” Selimi v. Ashcroft, 360 F.3d
736, 739 (7th Cir. 2004) (citing INS v. Doherty, 502 U.S. 314(1992)); see also Xu Long Lu v. Ashcroft, 259 F.3d 127, 131 (3d
Cir. 2001). “But granting deference to administrative tri-
bunals does not mean we have clothed their rulings with
5
(...continued)
(1987) required denial in certain circumstances but did not spe-
cify when to grant a motion to reopen, and “[t]he granting of a
motion to reopen is thus discretionary”); see also 8 C.F.R.
§ 1003.2(a) (“The decision to grant or deny a motion to reopen . . .
is within the discretion of the Board . . . .”). We have thus
continued to review the BIA’s decisions to reopen for abuse of
discretion after IIRIRA, as we did before. See Laboski v. Ashcroft,
387 F.3d 628, 631 (7th Cir. 2004) (citing Awad v. Ashcroft, 328 F.3d
336, 341 (7th Cir. 2003)); see also Pelinkovic v. Ashcroft, 366 F.3d
532, 536 (7th Cir. 2004).
Ms. Fessehaye submits that, in codifying procedures for a mo-
tion to reopen, IIRIRA changed the degree of deference that we
owe to the BIA’s decision, and for support she cites discussion in
Medina-Morales v. Ashcroft, 371 F.3d 520 (9th Cir. 2004). We cannot
accept this argument. The question presented in Medina-Morales
was whether the discretion to grant or deny motions to reopen,
vested in the Attorney General through 8 U.S.C. § 1229a(c)(7),
was such that the decision was unreviewable under 8 U.S.C.
§ 1252(a)(2)(B)(ii). Having found jurisdiction, the Ninth Circuit
proceeded to review the BIA’s decision for abuse of discretion.
Nothing in Medina-Morales indicates that we ought to modify our
review of the BIA’s discretion in this case. See, e.g., Guo v.
Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004) (“[O]ur review is highly
deferential: we review the denial of a motion to reopen for abuse
of discretion. Discretionary decisions of the [Board] will not be
disturbed unless they are found to be arbitrary, irrational, or
contrary to law.” (internal quotation marks and citation omit-
ted)).
10 No. 03-3933
that kind of power expressed in the maxim the ‘king can do
no wrong.’ ” Zhao v. United States Dep’t of Justice, 265 F.3d 83,
86 (2d Cir. 2001). A tribunal abuses its discretion when it
acts arbitrarily or capriciously and in such cases no defer-
ence is due. Id.In reviewing Ms. Fessehaye’s claims, we are mindful of
the substantive and procedural changes to the immigration
laws recently enacted by Congress through the REAL ID
Act. See Emergency Supplemental Appropriations Act for
Defense, the Global War on Terror, and Tsunami Relief,
Division B—REAL ID Act of 2005, Pub. L. No. 109-13, 119
Stat. 231. As relevant here, the REAL ID Act modified the
standard of review for orders of removal, id. § 101(e), a
change that applies “to all cases in which the final adminis-
trative removal order is or was issued before, on, or after”
the date of passage, id. § 101(h)(3). We turn to that provision
to assess its impact on our review of Ms. Fessehaye’s claims.
Section 101(e) amends 8 U.S.C. § 1252(b)(4) by adding
the following sentence: “No court shall reverse a determina-
tion made by a trier of fact with respect to the availability of
corroborating evidence, as described in section 208(b)(1)(B)
[8 U.S.C. § 1158(b)(1)(b)], 240(c)(4)(B) [8 U.S.C.
§ 1229a(c)(4)(B)], or 241(b)(3) [8 U.S.C. § 1231(b)(3)], unless
the court finds, pursuant to section 242(b)(4)(B), that a rea-
sonable trier of fact is compelled to conclude that such
corroborating evidence is unavailable.” Given the language
employed by Congress in this section, we do not believe
that new provision applies to our review of the denial of
Ms. Fessehaye’s motion to reopen in its current posture. By
its terms, section 101(e)’s effect does not apply to review of
motions to reopen under § 1229a(c)(7). Furthermore, section
101(e) dictates the standard of review to be applied when
the “trier of fact” has made a determination as to the
No. 03-3933 11
necessity of corroborating evidence. However, the BIA does
not act as a “trier of fact” when it decides whether to grant
or deny a motion to reopen. Thus, the standard of review set
forth in the REAL ID Act has no direct application to our
present review.
B. Merits
Under 8 U.S.C. § 1229a(c)(7), an applicant may file, within
ninety days of the order of removal, a motion to reopen
asylum proceedings based on new facts. “A motion to
reopen seeks fresh consideration on the basis of newly
discovered facts or a change in circumstances since the hear-
ing . . . .” Charles Gordon et al., Immigration Law and
Procedure § 3.05[7][a] (2004); see Canaveral Toban v. Ashcroft,
385 F.3d 40, 45 (1st Cir. 2004). The statute provides little
guidance on the form or sufficiency of a motion to reopen;
it simply directs that the motion “shall state the new facts
that will be proven at a hearing to be held if the motion is
granted, and shall be supported by affidavits or other evi-
dentiary material.” 8 U.S.C. § 1229a(c)(7)(B). The applicable
regulations largely repeat this statutory language: “A mo-
tion to reopen proceedings shall state the new facts that will
be proven at a hearing to be held if the motion is granted
and shall be supported by affidavits or other evidentiary
material.” 8 C.F.R. § 1003.2(c)(1). The BIA may deny a
motion to reopen based on the petitioner’s “ ‘failure to es-
tablish a prima facie case for the underlying relief sought’ ”
and “ ‘failure to introduce previously unavailable, material
evidence.’ ” Awad v. Ashcroft, 328 F.3d 336, 341 (7th Cir.
6
2003) (quoting Doherty, 502 U.S. at 323).
6
The BIA also may deny a motion to reopen after “a determina-
tion that even if these requirements were satisfied, the movant
(continued...)
12 No. 03-3933
1.
We agree with the BIA that Ms. Fessehaye’s application to
reopen based on the Eritrean government’s policy of
deporting ethnic Ethiopians fails to “introduce previously
unavailable, material evidence.” The sole support for this
claim—which was not argued in the motion to reopen
itself—is a statement in the affidavit accompanying her
motion that “new reports continue to be published of the
government’s arrest of returning Eritreans and the contin-
uing deportation (repatriation) of Ethiopians from Eritrea to
Ethiopia.” A.R. at 24. She failed to attach such “new re-
ports” to her motion, and indeed the materials that she did
attach seem to indicate the opposite. See id. at 47; 2001
Country Report § 1.d (“By mid-August the Government had
repatriated more than 21,000 Ethiopians to Ethiopia; how-
ever, all of these persons were repatriated voluntarily . . . .”);
see also A.R. at 51; 2001 Country Report § 2.d (“The Govern-
ment stated publicly on several occasions that it had not
adopted a policy of deporting all Ethiopian nationals from
the country. After August 2000, forced, mass deportations
stopped . . . .”); A.R. at 52; 2001 Country Report § 2.d
(“There were no reports of the forced return of persons to a
country where they feared persecution.”).
2.
However, we reach a different conclusion as to the BIA’s
decision to deny reopening on Ms. Fessehaye’s religious
6
(...continued)
would not be entitled to the discretionary grant of relief which he
sought.” See Awad, 328 F.3d at 341. There is no indication in the
record that the BIA would have refused to grant asylum to Ms.
Fessehaye even if she had proven entitlement to that relief.
No. 03-3933 13
conversion claim. In determining that Ms. Fessehaye’s evi-
dence in support of her conversion was insufficient, the BIA
found
that her motion to reopen is not appropriately sup-
ported by affidavits from her husband or religious
leaders or any other evidentiary materials to support
her assertion that she is, in fact, a Jehovah Witness even
though such affidavits could easily have been obtained
and presented.
A.R. at 3. Although the Board’s decision thus makes clear
that it believed that Ms. Fessehaye’s submissions were in-
adequate, the decision does not explain why the Board
viewed her evidence as insufficient.
Ms. Fessehaye sought to reopen her case and to apply for
asylum based on her religious conversion. To be eligible for
asylum, Ms. Fessehaye had to demonstrate that she was a
“refugee” under 8 U.S.C. § 1101(a)(42)(A). See 8 U.S.C.
§ 1158(b)(1). Among other things, a refugee is a person
unable or unwilling to return to her country because of a
well-founded fear of persecution on the basis of religion. Id.§ 1101(a)(42); Awad, 328 F.3d at 341. In asking the Board to
reopen its earlier determination, Ms. Fessehaye claims that
she had a well-founded fear of persecution because she was
a practicing Jehovah’s Witness.
The procedures for establishing eligibility for asylum
are described in 8 C.F.R. § 208.13. Whether Ms. Fessehaye
attempted to establish prima facie eligibility by demonstrat-
ing a well-founded fear of persecution under 8 C.F.R.
7
§ 208.13(b)(2)(i), or under the per se category in section
7
8 C.F.R. § 208.13(b)(2)(i) provides that:
(continued...)
14 No. 03-3933
8
208.13(b)(2)(iii), it is clear that she met most of the require-
ments. We already have noted the difficult circumstances
facing Jehovah’s Witnesses in Ethiopia. Indeed, in
Mr. Ghebremedhin’s case, we considered State Department
reports and his testimony and determined that no reason-
able factfinder could conclude that he lacked a well-
founded fear of persecution. Ghebremedhin I, 385 F.3d at
7
(...continued)
(i) An applicant has a well-founded fear of persecution if:
(A) The applicant has a fear of persecution in his or her
country of nationality or, if stateless, in his or her coun-
try of last habitual residence, on account of race, reli-
gion, nationality, membership in a particular social
group, or political opinion;
(B) There is a reasonable possibility of suffering such
persecution if he or she were to return to that country;
and
(C) He or she is unable or unwilling to return to, or avail
himself or herself of the protection of, that country
because of such fear.
8
As relevant here, 8 C.F.R. § 208.13(b)(2)(iii) limits the
Immigration Judge’s scope of review in certain cases. When an
applicant “establishes that there is a pattern or practice in his or
her country . . . of persecution of a group of persons similarly
situated . . . on account of race, religion, nationality, membership
in a particular social group, or political opinion,” id.§ 208.13(b)(2)(iii)(A), and “establishes his or her own inclusion in,
and identification with, such group of persons such that his or
her fear of persecution upon return is reasonable,” id.
§ 208.13(b)(2)(iii)(B), “the asylum officer or immigration judge
shall not require the applicant to provide evidence that there is a
reasonable possibility he or she would be singled out individ-
ually for persecution,” id. § 208.13(b)(2)(iii).
No. 03-3933 15
9
1119-20. Ms. Fessehaye has demonstrated that, if she is a
practicing Jehovah’s Witness, she has good reason to believe
that she will be singled out for persecution upon her return
to Eritrea. See 8 C.F.R. § 208.13(b)(2)(i); Petrovic v. INS, 198
F.3d 1034, 1037 (7th Cir. 2000). She also has presented a
“pattern and practice of persecution of an identifiable
group, to which [s]he belongs, such that” her fear of per-
secution “is reasonable.” Capric v. Ashcroft, 355 F.3d 1075,
1094 (7th Cir. 2004); see 8 C.F.R. § 208.13(b)(2)(iii).
The qualification, “if she is a practicing Jehovah’s Wit-
ness,” thus remains the only issue in this case. In this
respect, we note that Ms. Fessehaye’s submission complied
with the evidentiary requirements of 8 C.F.R. § 1003.2(c)(1)
that she “state new facts” that are “supported by affidavits
or other evidentiary material.” On a motion to reopen that
is based simply on paper submissions, as opposed to in-
person testimony, “the BIA is required to accept the facts
stated in the alien’s affidavit unless they are inherently
unbelievable.” Ordonez v. INS, 345 F.3d 777, 786 (9th Cir.
2003).
In our view, Ms. Fessehaye clearly supplied evidence of
the quality and quantity that the Board reasonably could
expect. Ms. Fessehaye provided an affidavit regarding a
“new fact,” her decision to convert to her husband’s faith,
and also explained therein why “official” confirmation of
the conversion could not be submitted within the given time
limits. There is nothing inherently unbelievable about Ms.
Fessehaye’s claim to have adopted the religion of her
spouse. Nor is there some other basis on which to question
9
Mr. Ghebremedhin’s case is not the only one discussing a well-
founded fear based on Eritrea’s persecution of Jehovah’s Wit-
nesses. See Muhur v. Ashcroft, 355 F.3d 958, 959-60 (7th Cir. 2004).
16 No. 03-3933
the veracity of Ms. Fessehaye’s statements regarding her
conversion; for instance, Ms. Fessehaye’s affidavit does not
contain internal inconsistencies that call into question the
veracity of her statements, nor is the affidavit at odds with
other materials that Ms. Fessehaye submitted in support of
her motion to reopen.
Nevertheless, the BIA took the view that Ms. Fessehaye’s
uncorroborated affidavit failed to establish that she is a
practicing Jehovah’s Witness. We must conclude, however,
that, on this record, requiring corroboration of her faith
commitment in order to establish prima facie eligibility was
arbitrary and capricious and constituted an abuse of dis-
cretion. The regulations provide that, in deciding an asylum
application on the merits, “[t]he testimony of the applicant,
if credible, may be sufficient to sustain the burden of proof
without corroboration.” 8 C.F.R. § 208.13(a). Under the plain
language of the rule, there is no blanket requirement for an
asylum seeker to offer additional affidavits before her prima
facie burden is satisfied.
The question becomes what more could Ms. Fessehaye
reasonably have been expected to present to the BIA by way
of evidence to establish her conversion? In evaluating the
Board’s use of that criteria, we have made it clear that the
touchstone must be the reasonableness of such a criterion in
the circumstances presented by the particular case. See
Gontcharova v. Ashcroft, 384 F.3d 873, 877 (7th Cir. 2004);
Capric, 355 F.3d at 1085 n.4. We wrote in Balogun v. Ashcroft,
374 F.3d 492, 502 (7th Cir. 2004):
[T]he corroboration requirement should be employed
reasonably. It is always possible to second-guess the
petitioner as to what evidence would be most cogent,
and, consequently, there is a distinct danger that, in
practice, the corroboration requirement can slip into
No. 03-3933 17
“could have-should have” speculation about what evi-
dence the applicant could have brought in a text-book
environment.
To enable us to conduct our review, we have required that
the BIA explain its decisions to require corroborating
evidence. “Such an explanation should include, at a mini-
mum: (1) an explicit credibility finding; (2) an explanation
of why it is reasonable to expect additional corroboration;
and (3) an account of why the petitioner’s explanation for
not producing that corroboration is inadequate.”
Gontcharova, 384 F.3d at 877; see also El-Sheikh v. Ashcroft, 388
F.3d 643, 647 (8th Cir. 2004). In this case, the BIA made no
determination that Ms. Fessehaye lacked credibility. Nor did
it provide any explanation as to why it was reasonable to
expect additional affidavits beyond the conclusory state-
ment that “such affidavits could easily have been obtained.”
A.R. at 3. Ms. Fessehaye explained to the Board that she
could not obtain affidavits from church elders because she
had not completed the conversion process; the BIA failed to
come to grips with that explanation and failed to explain
10
why Ms. Fessehaye’s explanation was inadequate.
10
As noted above, we are not, in this review, bound by the new
standard of review set forth in the REAL ID Act that prevents a
reviewing court from reversing the determination of a trier of fact
with respect to the availability of corroborating evidence unless
this court finds that “a reasonable trier of fact is compelled to
conclude that such corroborating evidence is unavailable.” REAL
ID Act § 101(e). But if, upon reopening her application, it is
determined that Ms. Fessehaye must corroborate her conversion,
and she again fails to provide such corroboration, this court will
review that determination according to the Act’s strictures.
However, on the record before us, we fail to see what more Ms.
Fessehaye could provide to establish her spiritual adherence to a
(continued...)
18 No. 03-3933
We never have held that an applicant’s affidavit alone is
insufficient to establish membership in a certain group.
Indeed, one’s religion is inherently a “personal experience[ ]
not reasonably subject to verification,” In re S-M-J, 21 I. & N.
Dec. 722, 725 (BIA 1997), and we have expressed concern
about the Board’s requiring more evidence of conversion
than reasonably can be expected, especially in the absence
of a finding that the alien is not credible, Muhur v. Ashcroft,
355 F.3d 958, 960 (7th Cir. 2004) (noting that many authentic
believers, including members of churches with more
structure than Jehovah’s Witnesses, would fail a test based
on objective indicators like knowledge of church doctrine);
Bastanipour v. INS, 980 F.2d 1129, 1132-33 (7th Cir. 1992)
(holding that it was inappropriate to question a claimed
conversion from Islam to Christianity when there was no
reason to question the applicant’s sincerity and when
apostasy was itself an offense under Islam); cf. 8 U.S.C.
§ 1229a(c)(4)(C) (“There is no presumption of credibility,
however, if no adverse credibility determination is explicitly
made, the applicant or witness shall have a rebuttable
presumption of credibility on appeal.”). But see Najafi v. INS,
10
(...continued)
new faith. Her affidavit evidences the reasonable reluctance of
church elders to corroborate her conversion until she has
completed the church’s requirements. Under the circumstances
presented here, “a reasonable trier of fact [would be] compelled
to conclude that such corroborating evidence is unavailable.”
Moreover, although it is true that Ms. Fessehaye may be able to
present affidavits of other Jehovah’s Witnesses corroborating her
attendance at religious celebrations or related events, if the sin-
cerity of Ms. Fessehaye’s beliefs are not at issue—and there is no
evidence that the BIA questioned Ms. Fessehaye’s credibility—
those affidavits only could establish Ms. Fessehaye’s outward
actions, not the sincerity of her beliefs.
No. 03-3933 19
104 F.3d 943, 949 (7th Cir. 1997) (distinguishing Bastanipour
and noting that “word of conversion is not enough”).
There is no question that Mr. Ghebremedhin is a practic-
ing Jehovah’s Witness. Where, as here, the movant credibly
claims to have converted to her spouse’s religion, we see no
necessity, absent exceptional circumstances, for the Board to
require further corroboration. See Limsico v. INS, 951 F.2d
210, 213 (9th Cir. 1991) (requiring BIA to accept as true facts
in applicant’s affidavit unless statements were inherently
unbelievable). We must conclude that, in imposing such a
requirement on Ms. Fessehaye in this case, the Board abused
its discretion.
3.
Finally, Ms. Fessehaye argued for the reopening of her
case because she “feared that she may be arrested and de-
tained as a result of her 1) religious conversion, 2) because
of her criticism and opposition to the government of Eritrea
for forcing her mother from Eritrea, and 3) because she
applied for asylum in the United States.” A.R. at 11. Her
first argument fundamentally is a repeat of her claim to fear
persecution based on her new faith; for reasons considered
above, we hold that Ms. Fessehaye offered new evidence
and made out a prima facie case on this ground that
warrants reopening her case.
However, her second argument, that she fears persecution
as a critic of the Eritrean government, fails for two reasons.
First, her claimed religious conversion and status as a
former asylum seeker both arose after the BIA denied her
first asylum claim, but there is no evidence that her criticism
of the Eritrean government occurred after the BIA’s first
decision. Her claim therefore does not constitute “pre-
viously unavailable, material evidence.” Awad, 328 F.3d at20 No. 03-3933
341. Indeed, Ms. Fessehaye did not mention her alleged
criticism of the Eritrean government in her initial asylum
application; rather, she introduced evidence of her mother’s
persecution to establish that the government had a pattern
of persecuting her family. Second, Ms. Fessehaye presented
no evidence with her motion to reopen establishing that she
actually criticized the government for its treatment of her
mother. Indeed, the only “evidence” she offered is a state-
11
ment in the motion and affidavit; unlike the religious
conversion claim, a claim both uniquely unsuited to second-
guessing by immigration officials and also corroborated by
her husband’s faith, there is no evidence that Ms. Fessehaye
was a government critic. She thus may not rely on her
claimed past criticism of the Eritrean government as a
ground for reopening.
The third argument, a fear of persecution because
Ms. Fessehaye unsuccessfully sought asylum, does raise
new ground. But to be eligible for asylum on this ground,
Ms. Fessehaye still must establish a prima facie case by
demonstrating a well-founded fear of persecution under 8
C.F.R. § 208.13(b)(2)(i). We may assume for the moment that
her status as a former asylum seeker qualifies her for
“membership in a particular social group” as described in
8 C.F.R. § 208.13(b)(2)(i)(A). However, Ms. Fessehaye’s
difficulty lies in establishing a “reasonable possibility of suf-
11
The only mentions of her criticism of the Eritrean government
are single statements in the motion and in her affidavit. See
A.R. at 11 (“Respondent fears that she may be arrested and de-
tained . . . because of her criticism and opposition to the govern-
ment of Eritrea . . . .”); id. at 24 (“I believe that on investigation
[the Eritrean government] will learn that . . . I object to the
policies of the Eritrean government, especially those which were
the cause of deporting my mother . . . .”).
No. 03-3933 21
fering such persecution” on this basis if she were to return
to her country. 8 C.F.R. § 208.13(b)(2)(i)(B).
She attempted to meet her burden under the “reasonable
possibility” prong by pointing to a statement in the 2001
Country Report indicating that the right of return for
Eritreans who “have been declared ineligible for political
asylum by other governments [is] considered on a case-by-
case basis.” A.R. at 51; 2001 Country Report § 2.d. She also
attached a press release from Amnesty International pur-
porting to offer further support. However, neither the 2001
Country Report nor the Amnesty International press release
establish Ms. Fessehaye’s prima facie eligibility. The
Country Report merely notes that Ms. Fessehaye’s situation
will be considered individually; it does not indicate a
“reasonable possibility” that she will be denied entry.
Additionally, the Amnesty International press release
does not provide support for this particular claim. The press
release notes only that 223 Eritreans were detained after
being deported from Malta, that the 223 were among a
group of 400 that arrived in Malta, and that about half that
number had applied for asylum. A.R. at 63. This does not
evidence a policy of detaining or denying entry to failed
asylum seekers. In fact, it appears from the press release
that the primary targets of detention in Eritrea are those
“who are suspected of opposition to the government or
having evaded military service.” Id. at 64. We are certain
that Ms. Fessehaye may not seek relief as a member of the
former of these two categories, as we have said that there is
no evidence that Ms. Fessehaye was an opposition leader.
But the press release’s mention of the persecution of those
who have evaded mandatory military service, in light of our
discussion of Ms. Fessehaye’s conversion and the tenets of
her faith, provides further evidence establishing Ms.
Fessehaye’s prima facie eligibility for asylum on that
ground.
22 No. 03-3933
Conclusion
The tendered evidence of religious conversion is “pre-
viously unavailable, material evidence” and makes out a
prima facie showing of eligibility, and Ms. Fessehaye is
entitled to a hearing. The Board clearly abused its discretion
in requiring more evidence before reopening
Ms. Fessehaye’s case. Therefore, we grant the petition for
review and remand to the BIA for further proceedings con-
sistent with this opinion.
PETITION FOR REVIEW GRANTED;
REVERSED and REMANDED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-8-05