Genet Zewdie v. John Ashcroft

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 03-3019
___________
Genet Gizaw Zewdie, *
*
Petitioner, *
*
v. * Petition for Review of an Order of
* the Board of Immigration Appeals.
John Ashcroft, Attorney General *
of the United States, *
*
Respondent. *
___________
Submitted: June 15, 2004
Filed: August 27, 2004
___________
Before MURPHY, HEANEY, and BRIGHT, Circuit Judges.
___________
BRIGHT, Circuit Judge.
Genet Zewdie petitions for review of the decision of the Board of Immigration
Appeals (“BIA”) denying her claims for asylum, withholding of removal, and relief
under the Convention Against Torture (“Convention”). We affirm the denial of
asylum and withholding of deportation, but we remand Zewdie’s claim under the
Convention for further proceedings and consideration.
I. Background
Zewdie, a citizen of Ethiopia, entered the United States without inspection on
August 25, 2000. She applied for asylum in September 2000. After learning of
Zewdie’s presence in this country through her application, the Immigration and
Naturalization Service instituted removal proceedings. Zewdie conceded
removability and applied for asylum, withholding of removal, and relief under the
Convention.
Zewdie claims that she was persecuted and tortured prior to leaving Ethiopia
and that if she returned she would also be tortured. We begin by explaining from the
records and the briefs Zewdie’s history in Ethiopia and the conditions in the country
at the time she fled. Zewdie’s father belonged to the Oromo ethnic group, the largest
ethnic group in Ethiopia, and became an active member in the Oromo Liberation
Front (“OLF”). The Oromo people established the OLF in July 1973.1 The OLF
supports autonomy or independence for the southern provinces of Ethiopia where
most Oromo live. The Oromo possess distinct physical characteristics and have their
own language; they live throughout Ethiopia but consider the southern province their
heartland. At one time, the OLF supported the current regime headed by the
Ethiopian People’s Revolutionary Democratic Front (“EPRDF”). However, the OLF
withdrew its support after discovering that the EPRDF manipulated the election
process. In 1993, the OLF took up arms against the government but lost to the
government military force. However, the OLF remains an active clandestine
organization in Ethiopia.
Since the uprising, the Ethiopian government has prohibited the OLF from
political participation. Despite the OLF efforts, government interference with
1
Partly taken from United States Dep’t of State, Report on Human Rights
Practices, 2000; Makonnen v. INS, 44 F.3d 1378, 1381-82 (8th Cir. 1995).
-2-
elections still occurs. According to the State Department’s 2000 report, the last
election held in the southern region contained numerous irregularities, including
fraud, harassment, intimidation, and political assassination. The OLF has not
garnered popular support because it has failed “to organize an effective anti-
government movement” within Oromo communities. Thomas P. Ofcansky & LaVerle
Berry, United States Dep’t of State Ethiopia: A Country Study 247 (1993). The OLF
continues to oppose the current government in Ethiopia and refuses to accept the
government as a legitimate authority.
As a member of the OLF, her father informed the Oromo people of their rights
and obligations, criticized the current government, and recruited new members. The
Ethiopian government arrested Zewdie’s father and kept him imprisoned for two
years for supporting the OLF. The government also captured and detained other
members of her family because they supported the OLF.2
We now turn to evidence presented by Zewdie to the immigration judge.
Zewdie claimed that she did not actively participate as a member in the OLF;
however, she admitted to sympathizing with the Oromo people and supporting the
work of the OLF. Zewdie testified that the Ethiopian government did not approve of
her support of the OLF and retaliated against her by imprisoning her and having her
fired from her job.
She claimed that her employer of ten years fired her for her connection to the
Oromo people and the OLF. In an offer of proof, she submitted a letter from her
employer stating that her termination followed the receipt of a letter from Ethiopian
2
The government allegedly killed her father’s brother for his OLF activities.
Government officials took her brother, possibly because he was sympathetic to the
OLF, and after Zewdie arrived in the United States, her mother and Zewdie’s
husband, who remained in Ethiopia, have disappeared.
-3-
government officials. Zewdie believes that the letter from the government informed
her employer of her Oromo heritage and her connections to the OLF.
Her imprisonment followed a trip to her father’s village in Mojo where she
informed the Oromo living in the community of their rights and responsibilities as
citizens. During her encounters with the Oromo people in Mojo, she spoke out
against the Ethiopian government and encouraged the people to vote in an upcoming
election for candidates that best represented the interests of the Oromo people.
Members of the Oromo Peoples’ Democratic Organization (“OPDO”), an entity set
up by the government to undermine the OLF, confronted Zewdie and told her to leave
the area.
Zewdie alleges that on returning to her home in Addis Ababa, Ethiopian
government officers arrested her for her political activities, including educating the
Oromo living in Mojo. She testified that the government held her in Maekalawi
Prison for twenty-six days before releasing her on bail. During her time in captivity,
government officers beat the soles of her feet repeatedly with wire whips and sticks.
At the hearing, she removed her shoes and showed the scars on her feet and ankles
to the immigration judge. She further testified that after her release, the officers
informed her she could not leave Addis Ababa and ordered her to report her activities
to them. Zewdie disobeyed and fled Ethiopia.
The immigration judge questioned Zewdie’s credibility, but made no specific
finding that Zewdie did not tell the whole truth. The immigration judge denied all
three claims of relief on October 4, 2001. The BIA affirmed the immigration judge’s
decision and questioned Zewdie’s credibility. Zewdie timely appeals the BIA’s
decision to this court.
-4-
II. Discussion
Zewdie first argues that she qualifies for asylum or withholding of deportation.
We have considered her claims regarding these issues and agree with the immigration
judge that Zewdie does not qualify for either. However, Zewdie’s remaining
arguments for relief under the Convention merit further consideration. See Sivakaran
v. Ashcroft, 368 F.3d 1028, 1029 (8th Cir. 2004) (holding that adverse decisions on
claims of asylum and withholding of removal do not preclude a Convention claim);
Habtemicael v. Ashcroft, 370 F.3d 774, 783 (8th Cir. 2004) (remanding Convention
claim after upholding denial of asylum and withholding of removal claims).
We give deference to the BIA’s findings of fact and overturn only if the
evidence “was so compelling that no reasonable fact finder could fail to find” her
eligible for relief under the Convention. See INS v. Elias-Zacarias, 502 U.S. 478,
483-84 (1992); Habtemicael, 370 F.3d at 779; 8 U.S.C. § 1252(b)(4)(B) (2004).
Here, the evidence compels us to vacate the BIA’s decision; substantial grounds exist
for believing that the Ethiopian government would torture Zewdie if she returned.
See Sivakaran, 368 F.3d at 1029 (remanding because the BIA conducted insufficient
fact-finding to deny the Convention claim); Habtemicael, 370 F.3d at 783 (remanding
the Convention claim for further fact-finding). See also Guchshenkov v. Ashcroft,
366 F.3d 554, 560 (7th Cir. 2004) (discussing the increase in reversals of BIA
decisions despite the deferential standard of judicial review and criticizing
immigration judges for their “systematic failure . . . to provide reasoned analysis for
the denial of applications for asylum”).
Both the immigration judge and the BIA failed to credit Zewdie’s testimony
and corroborating evidence. In addition, both failed to consider Zewdie’s claims in
light of the United States Department of State report on Ethiopia. We remand
because the immigration judge failed to articulate a reasoned analysis based on the
-5-
recorded evidence for denying Zewdie’s claims. In order to put Zewdie’s testimony
in context, we begin with an overview of the Convention and the conditions in
Ethiopia when Zewdie left.
Women and children make up eighty percent of the twenty-seven million
individuals displaced from their homes worldwide; of these women, twenty to thirty
percent left their homes because they experienced torture in their home countries.
Zewdie’s testimony puts her in this category and her treatment falls within the
specific purposes behind the Convention.
The United Nations enacted Convention Against Torture and Other Cruel,
Inhuman, or Degrading Treatment or Punishment to combat the use of torture
throughout the world.3 The United States ratified the Convention and it went into
effect November 20, 1994. Article III of the Convention provides that a signatory
country shall not “expel, return or extradite a person to another [country] where there
are substantial grounds for believing that he would be in danger of being subjected
to torture” in that country. Foreign Affairs Reform and Restructuring Act of 1998 §
2242, Pub. L. No. 105-277 (Oct. 21, 1998); see 22 C.F.R. § 95.1(c) (2004);
Habtemicael, 370 F.3d at 780-81. The Convention defines torture as:
any act by which severe pain or suffering, whether physical or mental,
is intentionally inflicted on a person for such purposes as . . . punishing
him or her for an act he or she or a third person has committed or is
suspected of having committed, or intimidating or coercing him or her
3
The United Nations has reported widespread patterns of torture and ill
treatment by government officials in seventy countries, making torture a worldwide
problem. Torture occurs not merely in developing countries; the use of torture has
become disturbingly legitimized even in industrialized nations facing a perceived
threat.
-6-
or a third person, or for any reason based on discrimination of any kind,
when such pain or suffering is inflicted by or at the instigation of or with
the consent or acquiescence of a public official or other person acting in
an official capacity.
8 C.F.R. § 208.18(a)(1) (2004). Torture does not include “pain or suffering arising
only from, inherent in or incidental to lawful sanctions.” 8 C.F.R. § 208.18(a)(3).
Before the immigration judge, Zewdie submitted the State Department’s 1997
Profile on Ethiopia. The report stated:
Authorities detained hundreds of persons without charge during the
year, especially in the Oromiya and Somali regions, for supposed
involvement with the OLF and ONLF. Many were ultimately released
without an appearance before a judge. Such cases often reflect arbitrary
actions by local officials, but also result from a shortage of trained and
competent prosecutors and judges.
United States Dep’t of State, Report on Human Rights Practices, 1997. The report
went on to discuss the atrocious conditions of Ethiopian prisons and also stated that
“security officials sometimes beat or mistreated detainees.”4
With this background, we now turn to Zewdie’s specific claims. The
immigration judge and the BIA denied relief under the Convention to Zewdie, a
woman who claims to have suffered extraordinary physical pain at the hands of her
government. In order to qualify for relief under the Convention, the applicant bears
4
The immigration judge all but ignored the State Department’s report, only
acknowledging that the report stated that “the OLF is an illegal organization in
Ethiopia, and it advocates the violent overthrow of the government.” The BIA made
no mention of the report.
-7-
the burden of showing “that it is more likely than not that he or she would be tortured
if removed to the proposed country of removal.” 8 C.F.R. § 208.16(c)(2). To prove
that it is more likely than not that the applicant would be tortured in the country of
removal, “all evidence relevant to the possibility of future torture shall be
considered.” 8 C.F.R. § 208.16(c)(3). Relevant evidence may include:
(i) Evidence of past torture inflicted upon the applicant;
(ii) Evidence that the applicant could relocate to a part of the
country of removal where he or she is not likely to be tortured;
(iii) Evidence of gross, flagrant or mass violations of human rights
within the country of removal, where applicable; and
(iv) Other relevant information regarding conditions in the
country of removal.
Id.The immigration judge and the BIA rejected Zewdie’s claims, finding that she
did not meet her burden of proof and questioned her credibility.5 In evaluating
credibility determinations we defer to “an immigration judge’s credibility finding
where the finding is supported by a specific, cogent reason for disbelief.”
Perinpanathan v. INS, 310 F.3d 594, 597 (8th Cir. 2002) (citations omitted). An
immigration judge can base a credibility determination on the lack of corroborating
evidence if the judge also encounters inconsistencies in testimony, contradictory
evidence, or inherently improbable testimony. Diallo v. INS, 232 F.3d 279, 288 (2d
Cir. 2000).
During Zewdie’s testimony in front of the immigration judge, she removed her
shoes and showed the immigration judge the scars on the bottom of her feet and
ankles. She testified, without contradiction, that she received these scars after being
5
Neither the immigration judge or the BIA explicitly found Zewdie not
credible.
-8-
beaten repeatedly over a period of twenty-six days with wire whips and sticks. She
further testified that government officers threatened her with reprisal if she left Addis
Ababa. She also submitted several documents supporting her claim. For instance,
she submitted an affidavit from Lulsseged Wolkeba, a former resident of Addis
Ababa, Ethiopia, stating that Zewdie’s “life and security would be in great danger if
she is forced to return to Ethiopia”; she submitted a letter from her brother informing
her that after she left Ethiopia, the government seized her husband and took him to
an unknown location.
Despite Zewdie’s testimony and the evidence she presented, the immigration
judge and BIA found Zewdie not credible because she could not offer corroborating
evidence that the scars on her feet resulted from beatings and because she did not
inform the asylum officer of the beatings.6
6
The immigration judge in his oral opinion stated in reference to the
Convention claim that:
The Court acknowledges that this is a difficult case. The
respondent demonstrated some injuries to her feet. However, there is no
medical report to indicate whether these injuries are consistent with the
type of abuse that the respondent testified to . . . . In this particular case,
considering all of the evidence presented by the respondent . . . and
considering the overall lack of meaningful corroboration in this case, the
Court believes the respondent has not met her burden of proof.
App. at 22-23.
The BIA’s order echoed this language:
[Zewdie] has also submitted no evidence to establish that it is more
likely than not that she will be tortured in Ethiopia.
The respondent appears to contend that it should be sufficient that
she has scars on her feet and that she showed the scars to the
Immigration Judge. However, we agree with the Immigration Judge that
-9-
It is unreasonable to expect Zewdie to meet the extraordinary level of
corroborating evidence demanded by the BIA. We highly doubt the Maekalawi
Prison keeps records regarding prisoner abuse of the kind suffered by Zewdie and we
are doubtful that a tortured person in an Ethiopian prison would have access to a
physician to verify the torture. Even if such proof existed, we observe that “[i]t is
often impossible for an asylum applicant to obtain corroborating evidence from [her]
home country.” Bellido v. Ashcroft, 367 F.3d 840, 844 (8th Cir. 2004).
Corroboration exists for Zewdie’s testimony in the scarring on her feet; nothing more
is needed. Diallo, 232 F.3d at 288; see also 8 C.F.R. § 208.13(a) (“testimony of [an]
applicant, if credible, may be sufficient to sustain the burden of proof without
corroboration.”). As long as the “applicant’s testimony is generally consistent,
rational, and believable,” inconsistencies in the testimony “need not be fatal to
credibility, especially if the errors are relatively minor and isolated.” Diallo, 232 F.3d
at 288.
Zewdie’s failure to mention her beatings to the asylum officer or indicate them
on her asylum application should not be dispositive of her credibility, given the
obvious translation difficulties revealed in the record.7 Such a communication failure
given the lack of any doctor’s statement or other corroborating evidence
concerning the origin of the scars, coupled with the respondent’s failure
to indicate in her written application or to the asylum officer that she
was beaten on her feet, the fact that she has scars is not sufficient to
establish her claim.
App. at 3 (emphasis added).
7
Zewdie did not have counsel during her interview with the asylum officer.
Further, the translator had difficulty translating both the asylum officer’s questions
and Zewdie’s responses. In addition, during oral argument, Zewdie’s counsel noted
Zewdie’s cultural differences regarding her bodily scarring.
-10-
does not rationally outweigh the overwhelming significance of the evidence presented
to the immigration judge. The record is clear, the scarring on Zewdie’s feet and
ankles came from being beaten. No reason exists in this record to disbelieve Zewdie.
We hold that the BIA failed to rationally assess Zewdie’s credibility on the
torture issue. In light of the evidence presented by Zewdie, no reasonable fact finder
could fail to find Zewdie eligible for relief. The evidence of past torture coupled with
Zewdie’s testimony that the Ethiopian government threatened reprisal if she fled the
country and the State Department’s report outlining the human abuses present in
Ethiopian prisons provide substantial grounds for believing that it is more likely than
not Zewdie will be tortured if forced to return to Ethiopia. For these reasons, we must
overturn the BIA’s decision. On remand, we direct the BIA to assess all of the
evidence and come to a reasoned conclusion based on a thorough analysis of the
evidence.
Ethiopian women are accustomed to abuses and have little redress within their
government. See United States Dep’t of State, Report on Human Rights Practices,
2000. Recognizing that women are less willing to discuss abuses they suffer, the
Office of International Affairs issued a memorandum instructing asylum officers on
how best to interview women seeking asylum. See Memo. from Phyllis Coven,
Immgr. & Naturalization Serv. Dir. of Off. of Intl. Affairs, to All INS Asylum
Officers, Consideration for Asylum Officers Adjudicating Asylum Claims from
Women (May 26, 1995). However, such interviewing techniques are seldom used
and unfortunately are not required. See Danette Gomez, Last in Line: The United
States Trails Behind in Recognizing Gender Based Asylum Claims, 25 WHITTIER L.
REV. 959, 963 (Summer 2004).
-11-
III. Conclusion
We affirm the BIA’s determination regarding the asylum claim and the
withholding of deportation claim. We vacate the BIA’s order denying relief under
the Convention and remand for further consideration in accordance with this opinion.
______________________________
-12-
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 03-3019
___________
Genet Gizaw Zewdie, *
*
Petitioner, *
*
v. * Petition for Review of an Order of
* the Board of Immigration Appeals.
John Ashcroft, Attorney General *
of the United States, * [PUBLISHED]
*
Respondent. *
___________
ORDER
___________
Counsel for respondent John Ashcroft requests the following modification of
this court’s decision in Zewdie v. Ashcroft, 381 F.3d 804 (8th Cir. 2004): (1) delete
all references to Diallo v. INS, 232 F.3d 279, 288 (2d Cir. 2000), and (2) delete the
second paragraph of footnote 7. Respondent’s request for modification regarding the
citations to Diallo is denied. Footnote 7 is modified to read as follows:
7
Zewdie did not have counsel during her interview with the
asylum officer. Further, the translator had difficulty translating both the
asylum officer’s questions and Zewdie’s responses. In addition, during
oral argument, Zewdie’s counsel noted Zewdie’s cultural differences
regarding her bodily scarring.
Ethiopian women are accustomed to abuses and have little redress
within their government. See United States Dep’t of State, Report on
Human Rights Practices, 2000. Recognizing that women are less
willing to discuss abuses they suffer, the Office of International Affairs
issued a memorandum instructing asylum officers on how best to
interview women seeking asylum. See Memo. from Phyllis Coven,
Immgr. & Naturalization Serv. Dir. of Off. of Intl. Affairs, to All INS
Asylum Officers, Consideration for Asylum Officers Adjudicating
Asylum Claims from Women (May 26, 1995). However, such
interviewing techniques are, unfortunately, not required and some have
suggested asylum officers have not consistently adhered to the
interviewing techniques. See Danette Gomez, Last in Line: The United
States Trails Behind in Recognizing Gender Based Asylum Claims, 25
Whittier L. Rev. 959, 963 (Summer 2004). We do not suggest, by
implication or otherwise, that the approved interview techniques were
not applied in Zewdie’s case.
October 21, 2004
Order Entered at the Direction of the Court:
Clerk, U.S. Court of Appeals, Eighth Circuit
-2-