Filed: Jun. 17, 2005
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 6-17-2005 Fiadjoe v. Atty Gen USA Precedential or Non-Precedential: Precedential Docket No. 03-2917 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "Fiadjoe v. Atty Gen USA" (2005). 2005 Decisions. Paper 915. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/915 This decision is brought to you for free and open access by the Opinions of t
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 6-17-2005 Fiadjoe v. Atty Gen USA Precedential or Non-Precedential: Precedential Docket No. 03-2917 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "Fiadjoe v. Atty Gen USA" (2005). 2005 Decisions. Paper 915. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/915 This decision is brought to you for free and open access by the Opinions of th..
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Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
6-17-2005
Fiadjoe v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 03-2917
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005
Recommended Citation
"Fiadjoe v. Atty Gen USA" (2005). 2005 Decisions. Paper 915.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/915
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 03-2917 & 04-1554
LORRAINE FIADJOE
Petitioner,
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
On Petition for Review of Orders of The
Board of Immigration Appeals
Agency Docket No. A77-943-716
Argued November 19, 2004
Before: ROTH, SMITH, Circuit Judges and DEBEVOISE * ,
Senior District Court Judge
(Filed: June 17, 2005)
DAVID E. PIVER, ESQ. (Argued)
W. JOHN VANDENBERG, ESQ.
The Law Office of David E. Piver
150 Strafford Ave., Suite 115
Wayne, PA 19087
PETER D. KESSLER, ESQ.
Assistant Attorney General
Civil Division
TERRI J. SCADRON, ESQ.
Assistant Director
JEFFREY J. BERNSTEIN (Argued)
LESLIE McKAY
Attorneys
U.S. Department of Justice, Civil Division
Office of Immigration Litigation
Ben Franklin Station
P.O. Box 878
Washington, D.C. 20044
*
The Honorable Dickinson R. Debevoise, Senior United
States District Judge for the District of New Jersey, sitting by
designation.
2
OPINION OF THE COURT
Debevoise, Senior District Judge
Petitioner, Lorraine Fiadjoe, petitions for review of
orders of the Board of Immigration Appeals (“BIA”) denying
her application for asylum, withholding of removal and relief
under the Convention Against Torture and denying her
motion for reconsideration. With the exception of an eleven
year interval, from 1978, when Ms. Fiadjoe was seven years
of age, until her flight from her native Ghana to the United
States in March 2000, Ms. Fiadjoe was held as a slave of her
father, a priest of the Trokosi sect, who, in accordance with
the tenets of the sect, forced his daughter to work for him and
abused her physically and sexually. Ms. Fiadjoe sought
asylum and other relief on the ground that if she were
returned to Ghana she, as one of the women subject to the
practices of the Trokosi sect, would likely once again become
subject to her father’s bondage and abuse, a consequence that
Ghanian government authorities were unable or unwilling to
prevent.
Both the Immigration Judge (“IJ”) and the BIA found
that Ms. Fiadjoe’s testimony was not credible, and the BIA
found that Ms. Fiadjoe failed to establish that the government
of Ghana was either unwilling or unable to control her
father’s sexual abuse. We conclude that these findings are not
supported by reasonable, substantial and probative evidence
on the record considered as a whole. We will grant the
petition and remand the case for a new hearing and
development of the record before a different IJ.
I. Procedural Background
3
On March 11, 2000, using a passport bearing the name
of another person, petitioner, Lorraine Fiadjoe, entered the
United States. She is a member of the Ewe tribe and a native
and citizen of Ghana. She was detained as an arriving alien
and interviewed. Upon her refusal to be sent back to Ghana,
the immigration authorities transferred her to the York County
[Pennsylvania] Prison.
On March 30 Asylum Officer James L. Reaves
conducted an Asylum Pre-Screening Interview of Ms.
Fiadjoe, after which he found that she had established a
significant possibility of a claim for asylum based on her
membership in a particular social group (unmarried women
over 25 in Ghana). He also found that Ms. Fiadjoe had
established a credible fear of persecution or torture.
On the same day the Immigration and Naturalization
Service (“INS”)1 charged Ms. Fiadjoe with removeability
under §§212(a)(6)(C)(i) and 212 (a)(7)(A)(i)(I) of the INA, 8
U.S.C. §§1182(a)(6)(C)(i), (a)(7)(A)(i)(I) (2003) and issued a
notice to appear. At a June 1, 2000 hearing before an IJ Ms.
Fiadjoe conceded that she was removable under
§212(a)(7)(A)(i)(I) of the INA for being an intending
immigrant not in possession of a valid visa or other entry
document.
Ms. Fiadjoe filed applications for asylum, withholding
of removal, and protection under the Convention Against
Torture, Article 3 of the Convention Against Torture and
Other Forms of Cruel, Inhuman or Degrading Treatment or
Punishment, G.A. Res. 39/46, Annex 39 U.N. GAOR Supp.
No. 51, at 197, U.N. Doc. A/39/51 (1984) (“CAT”). The IJ,
Donald Vincent Ferlise, held an evidentiary hearing on April
1
The enforcement functions of the INS have since been
transferred to the Department of Homeland Security, pursuant to §441
of the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat.
2135 (Nov. 25, 2002).
4
30, 2002, after which he denied Ms. Fiadjoe’s application for
relief and ordered her removed to Ghana.
Ms. Fiadjoe filed a timely appeal with the BIA. On
June 6, 2003 the BIA dismissed the appeal. Ms. Fiadjoe filed
a timely petition for review of the BIA’s decision in this court
and subsequently filed a motion with the BIA seeking
reconsideration of the BIA’s June 6 order. On February 18,
2004 the BIA denied the motion to reconsider. Ms. Fiadjoe
filed a petition for review of the BIA’s February 18 decision.
That petition has been consolidated with the first petition.
II. Petitioner’s Evidence
Ms. Fiadjoe’s claims for relief stem from her assertion
that from age seven until she fled from Ghana, with an eleven
year interval from 1978 until 1989, her father held her as a
slave, subject to physical beatings and frequent rape, pursuant
to the tenets of the Trokosi religion, of which her father was a
priest.
The nature and existence of the Trokosi practices are
described in a number of documents that are in the record.
The United States Department of State Country Report on
Human Rights Practices in Ghana released in February 2001
(the “State Department Report” or the “Report”) is one
example. In a summary statement the Report states,
“Violence against women is a serious problem. Traditional
practices, including a localized form of ritual servitude
(Trokosi) practiced in some rural areas, still result in
considerable abuse and discrimination against women and
children.” The Report further noted that “[v]iolence against
women, including rape and domestic violence, remains a
significant problem. A 1998 study revealed that particularly
in low-income, high-density sections of greater Accra, at least
54 percent of women have been assaulted in recent years,”
and that “[w]omen, especially in rural areas, remain subject to
burdensome labor conditions and traditional male
5
dominance.”
The State Department Report described in some detail
Trokosi practices:
Although the Constitution prohibits slavery, it
exists on a limited scale. Trokosi, a traditional
practice found among the Ewe ethnic group and
in part of the Volta Region, is an especially
severe human rights abuse and an extremely
serious violation of children’s and women’s
rights. It is a system in which a young girl,
sometimes under the age of 10, is made a slave
to a fetish shrine for offenses allegedly
committed by a member of the girl’s family. In
rare instances, boys are offered. The belief is
that, if someone in that family has committed a
crime, such as stealing, members of the family
may begin to die in large numbers unless a
young girl is given to the local fetish shrine to
atone for the offense. The girl becomes the
property of the fetish priest, must work on the
priest’s farm, and perform other labors for him.
Because they are the sexual property of the
priests, most Trokosi slaves have children by
the priests. Although the girls’ families must
provide for their needs such as food, most are
unable to do so. There are at least 2,200 girls
and women bound to various shrines in the
Trokosi system, a figure that does not include
the slaves’ children. Even when freed by her
fetish priest from the more onerous aspects of
her bondage, whether voluntarily or as a result
of intervention by activists, a Trokosi women
generally has few marketable skills and little
hope of marriage and typically remains bound to
the shrine for life by psychological and social
pressure arising from a traditional belief that
6
misfortune may befall a Trokosi woman’s
family or village if she abandons her obligations
to the shrine. When a fetish slave dies, her
family is expected to replace her with another
young girl, thus perpetuating the bondage to the
fetish shrine from generation to generation.
In 1998 Ghana’s Parliament passed legislation that,
among other provisions designed to protect women, banned
the practice of “customary servitude” (known as Trokosi).
After passage of this legislation, the Report states, “[t]he
CHRAJ and International Needs have had some success in
approaching village authorities and fetish priests at over 316
of the major and minor shrines, winning the release of 2,800
Trokosi slaves to date and retraining them for new
professions.” However, as of the time of the report (2000),
“[t]here are at least 2,200 girls and women bound to various
shrines in the Trokosi system, a figure that does not include
the slaves’ children.”
Despite the 1998 legislation, as of the year 2000, “[t]he
Government has not prosecuted any practitioners of Trokosi,
and in August 1999, a presidential aide criticized anti-Trokosi
activists for being insensitive to indigenous cultural and
‘religious’ practices.” The Statement Department Report
recites at great length the terrible abuses committed by
Ghana’s police, noting that “[i]n recent years, the police
service in particular has come under severe criticism
following incidents of police brutality, corruption, and
negligence.” With respect to the police and their reaction to
violence against women, the Report recites “[v]iolence
against women, including rape and domestic violence,
remains a significant problem . . . a total of 95 percent of the
victims of domestic violence are women, according to data
gathered by the FIDA. These abuses generally go unreported
and seldom come before the courts. The police tend not to
intervene in domestic disputes.”
7
It is against this well-documented background that Ms.
Fiadjoe’s account of her own experiences unfolds. These
events are described in her affidavit in support of her asylum
application (Form I-589) and in her April 30, 2002 hearing
testimony. They are described in the report of the
psychologist who treated her for the trauma these events
caused.
Ms. Fiadjoe was born a member of the Ewe tribe on
March 17, 1971 in Accra, Ghana. When she was a young
child her parents separated. She was too young at that time to
remember her parents living together. Her mother remarried
and remained in Accra. Her father, a farmer, also remarried
and lived in a village called Veku outside of Anloga, a remote
area of rural Ghana. Ms. Fiadjoe was sent to live with her
father.
The father was a Trokosi priest, maintaining a shrine in
his home where he and other members of the Trokosi cult
conducted Trokosi rituals. In 1978 when Ms. Fiadjoe was
seven years of age, her father, pursuant to Trokosi practices,
sought to make her his slave, working for him and the shrine
and submitting to him sexually. During an approximately
three months period the father sexually abused Ms. Fiadjoe as
part of the Trokosi tenets. Fortunately for Ms. Fiadjoe, her
father’s sister, Aunt Dela, objected to this abuse and took Ms.
Fiadjoe to live with her family in Accra. There Ms. Fiadjoe
no longer saw her father and was able to attend school and
live the life of an independent young woman. She was a
Christian, of the Baptist persuasion.
Sadly, in 1989 Aunt Dela was killed in an automobile
accident. Her husband remarried and directed Ms. Fiadjoe to
leave his house. She had nowhere else to go except to return
to her father in Veku. There she once again became her
father’s slave subject to beatings and rape. Approximately a
year after her return she described to her grandmother the
torments to which she was being subjected. The grandmother
reported the beatings to the police but did not mention the
8
rapes because of the disgrace that such a revelation would
bring upon the family. The police refused to intervene on the
ground that only a domestic dispute was involved.
Ms. Fiadjoe attempted to escape from these conditions.
She went to work selling fish in order to accumulate some
money. When she had saved enough she moved out of her
father’s house and rented a room of her own. However, after
returning to her room one evening her landlord returned her
rent and told her she could not stay. He had been threatened
by her father. Ms. Fiadjoe sought to escape through marriage
and dated two men of her village, first Titi and then Agol,
each of whom wanted to marry her. Her father would not
allow a marriage and scared off each of these men.
In 1996 Ms. Fiadjoe met a Muslim man, Ahmed
Kublano who lived with his parents in Anloga. His brother
Rasheed lived nearby. Ms. Fiadjoe and Ahmed fell in love
and wanted to marry. In order to persuade the father to
consent Ahmed brought him gifts, but he could not bring his
family because they were Muslims and opposed the marriage.
Ms. Fiadjoe had informed Ahmed about the beatings but had
not told him that her father periodically raped her. Ahmed
persuaded her to leave her home and go with him to stay with
his cousin in Nigeria.
The two fled to Nigeria and stayed with the cousin.
They stayed there a week, but the cousin started to approach
Ms. Fiadjoe sexually and they had to leave. Having no money
it was necessary that they return to Ghana. Ms. Fiadjoe had
no place to go other than her father’s house. As she explained
at her asylum hearing, she had to go back “because we [she
and Ahmed] are not married and in Ghana before you can be
free from your father, your father have to accept your
marriage.”
The father resumed beating Ms. Fiadjoe and poured
boiling water over her because she had disobeyed him. The
sexual abuse continued. She and Ahmed continued to see
each other and still wanted to marry. It was a star-crossed
9
relationship. As Ms. Fiadjoe stated in her affidavit: “My
father hated Ahmed because he did not want me to be with
anyone but him, and because Ahmed was a Muslim. My
father was opposed to the marriage and he said that I can’t
marry Ahmed because I am a Christian. Ahmed’s family did
not approve of me and did not want us to marry because I am
a Christian.”
Ms. Fiadjoe became pregnant by Ahmed and hoped
that this would persuade her father to agree to her marriage.
When she told her father of her pregnancy he beat her until
she miscarried. Ahmed continued to visit Ms. Fiadjoe. He
did so on March 5, 2000, waiting in her bedroom before they
went out together. Ms. Fiadjoe testified that at that point “I
went to the shower to take a bath and then, when I came back,
when I was coming out, I saw my father coming out of my
room, but I knew Ahmed was in the room, so when I went
there Ahmed was lying in blood . . . I hold [his] hand and he
didn’t talk to me, he was just lying in the blood and he didn’t
do anything, so to me I was thinking he’s dead.”
Ms. Fiadjoe started shouting and her father told her
that if she didn’t shut up he would kill her. She took the
money she had saved and left the house. She proceeded to
Ahmed’s brother, Rasheed, to tell him what had happened.
She then went to the roadside and took a car to Accra. There
she went to her mother’s house and told her what had
happened. The mother did not want Ms. Fiadjoe to stay with
her because she knew the father was dangerous. Ms. Fiadjoe
then sought refuge with her Aunt Dela’s husband, who did not
even want her to sit down, or enter the house because he was
afraid of the father.
Next Ms. Fiadjoe went to a person she had known for
many years named Alfred who, for fear that the father would
suspect that Ms. Fiadjoe was with him, took her to his
girlfriend’s house. As Ms. Fiadjoe testified: “When he took
me to his girlfriend’s house, he told me you can’t stay here
with this problem, you can’t stay here, so, he took me to town,
10
took passport size picture and then he gave me some clothes, I
stayed there for about five days, I stayed with them for about
five days, he gave me passport to just leave . . . The passport
he gave to me, I’m going to Canada, if I go to Canada, I will
meet somebody at the airport, they will be holding my name.”
Ms. Fiadjoe gave five hundred thousand Ghanian cedis
to Alfred and received from him $130 U.S. dollars and the
passport which bore her photograph and the name Mercy
Appiah-Kubi. Alfred drove her to the airport on March 10,
2000. She flew to JFK Airport in New York City, arriving on
March 11. There she was taken into custody by INS officials.
INS officials questioned Ms. Fiadjoe that day and
completed a handwritten Record of Sworn Statement in
Proceeding under Section 235(b)(1) of the Act. Her answers
made very little sense. In response to the question “Why did
you leave your home country or country of last residence?”,
she responded, “I want to look after my mother.” In response
to the question “Do you have any fear or concern about being
returned to your home country or being removed from the
United States?” she replied, “Yes. I cannot look after my
sisters and brothers.” In response to the question “Would you
be harmed if you are returned to your home country or
country of last residence?”, she responded “Yes . . . I can’t
stand the responsibilities.”
After the INS transferred Ms. Fiadjoe to York County
Prison, Officer Reaves administered an Asylum Pre-Screening
Interview on March 30. Contrary to the facts as she later
recounted them, Ms. Fiadjoe informed Officer Reaves that her
father’s beatings began three years ago, that her father tried to
have sex with her but that she never allowed it.
In due course Ms. Fiadjoe was released from detention
and took up residence at International Friendship House. She
had great difficulty adjusting to her environment and
neighborhood. Her then attorney referred her to Kathleen M.
Jansen, M.S., C.T.S., a psychologist and adult therapist
associated with the Victim Assistance Center of York,
11
Pennsylvania, who first saw Ms. Fiadjoe on May 5, 2000. At
the outset Ms. Jansen found that Ms. Fiadjoe was withdrawn
and highly anxious, made almost no eye contact, kept her
head down, spoke very softly and frequently dissociated 2 .
Ms. Jansen’s recital of the events of Ms. Fiadjoe’s
prior life coincided virtually identically with events as later
described in Ms. Fiadjoe’s asylum affidavit, which she
executed on July 5, 2001, and her April 2, 2002 testimony. In
three respects Ms. Jansen’s report became a basis of the IJ’s
and the BIA’s credibility determinations. First, it is apparent
that she had no understanding of the Trokosi sect and its
relationship to the torments to which Ms. Fiadjoe was
subjected. In this regard Ms. Jansen wrote, “Ms. Fiadjoe
describes her father as having a religious ‘fetish’ which I have
come to believe refers to what we would call an addiction.”
Second, referring to Ahmed, Ms. Jansen wrote, “[h]e was
aware of the sexual assaults by her father, but was powerless
to stop them.” Third, she described the death of Ahmed as if
he had been shot, writing: “On the night before she left her
father’s home for the last time, she reports being in the
‘shower room’ when she heard noises. When she emerged,
she found her boyfriend lying shot on the floor. He was still
alive when she reached him, and died in her arms.” (emphasis
added).
Ms. Jansen described Ms. Fiadjoe’s emotional status:
Work with Ms. Fiadjoe has been complicated by
the long history of multiple traumas and the
underlying fear of being returned home. As
2
In psychology “dissociation” is “a defense mechanism in
which a group of mental processes are segregated from the rest of a
person’s mental activity in order to avoid emotional distress, as in the
dissociative disorder (q.v.), or in which an idea or object is segregated
from its emotional significance, in the first sense it is roughly
equivalent to splitting, in the second, to isolation.” Borland’s Medical
Dictionary, 27th Edition (1988).
12
with many incest survivors, she has learned to
endure trauma by dissociating, emotionally
removing herself from her surroundings until
the pain has subsided.
…
Each time I met with Ms. Fiadjoe, I see
dramatic improvements. She has established
eating and sleeping habits that are within
normal limits. Her communication abilities
have improved, although she continues to
occasionally dissociate when discussing
emotionally painful events. She is able to
maintain reasonable eye contact and has a
significantly greater range of affect. She is able
to discuss many more difficult subjects without
dissociating or breaking down. She remains
extremely fearful of her father finding out
where she is and of being sent back to Ghana
and forced to return to his home.
Ms. Jansen’s report thus described Ms. Fiadjoe’s
somewhat fragile emotional state as she proceeded towards
her asylum hearing continuing “to occasionally dissociate
when discussing emotionally painful events.”
III. April 30, 2002 Hearing and Initial Oral Decision
Ms. Fiadjoe’s asylum hearing on April 30, 2002 posed
a challenge to her ability to discuss the difficult subjects of
13
rape and incest without dissociating or breaking down. Her
attorney, Mr. Piver, commenced by questioning her about her
early years, her religion, Trokosi practices and the start of her
father’s sexual abuse when she was seven.
While Ms. Fiadjoe testified about the initial sexual
abuse at age seven, the cessation of the abuse while she was
in Accra with her Aunt Dela and its resumption eleven years
later, the IJ, Donald V. Ferlise, appeared unable to
comprehend this sequence of events and the following
interchange between him and the witness took place:
Q: Well, how long, how long did this go on,
that you were being raped and beaten?
JUDGE TO MR. PYVER (sic)
Q: What?
A: We’re getting to that?
Q: Well, I’m getting to it now.
JUDGE TO MS. FIADJOE
Q: How did this go on?
A: It, when I left to Accra it stopped, but
14
when I came back to my father again
then, at the age of 18 it continued from
there.
Q: All right, (indiscernible) at age seven, did
your father beat or rape you at age
seven?
A: Yes.
Q: For how long of period of time did that
go on?
A: For, til I was seven, I know my father
was raping me.
Q: Ma’am, you’re not making any - -
A: - - For it went - -
Q: - - Ma’am, you, you can cry, that’s fine,
but your not making any sense, and the
tears do not do away with the fact that
your not making any sense to me. Now,
rather than crying, just answer the
question. You said, your father raped
you at age seven and he would beat you,
correct?
A: Yes, but I didn’t tell anybody.
Q: I don’t care if you did or not. At age
seven, how long did this go on that he
was raping you and beating you?
15
A: In fact, he was doing that to me when I
cried to my auntie, I want to - -
Q: - - Ma’am, I don’t like it when someone
beats around the bush, okay, when they
don’t answer me. Another thing I don’t
like is when somebody makes sounds as
if their crying and their eyes stay dry, all
right. It’s a form of histrionics, stage
(indiscernible), I don’t like that. I want
straight answers and I want straight
answers right now. You said, your father
beat you and raped you at age seven, how
long did that go on while you were age
seven?
A: In fact, it went until age seven and I left.
Although it had been established that Ms. Fiadjoe had
been born in 1971, that her father’s sexual molestation began
when she was seven in 1978, that she left for Aunt Dela’s
home that year and returned to her father eleven years later
when Aunt Dela died, the IJ hounded Ms. Fiadjoe because
after the IJ’s previous brow beating she could not testify as to
the year when she returned to her father. This exchange
ensued:
MR. PYVER (sic) TO MS FIADJOE
Q: Okay, did you, when you went back to
live with your father, had you, did, strike
that - -, when you went back to live with
your father, how was your treatment at
that time?
A. He tried to beat me and rape me again.
Q: Okay, how long did that start after you
16
returned to his home?
A: After a year.
Q: After a year.
JUDGE TO MS. FIADJOE
Q: All right, when did you return to your
father, what year?
A: (No audible response).
Q: Madam, please answer my question?
A: I don’t remember the year, but I knew I
was 18 years, I don’t remember the year.
Q: You don’t know what year it occurred
in?
MR. PYVER (sic) TO MS. FIADJOE
Q: No, how, what year were you in - -
A: - - Wait a minute, please
JUDGE TO MS. FIADJOE
Q: Do you know what year it, it occurred in?
A: (Indiscernible).
Q: You know the question, please don’t do
this, don’t beat around the bush, it’s
aggravating, you know the question,
what year did you return to your father?
17
A: (No audible response).
JUDGE FOR THE RECORD
All right, I find the respondent is non responsive to the
question.
The IJ challenged Ms. Fiadjoe’s testimony that her
father maintained a room in his house which contained idols:
JUDGE TO MS. FIADJOE
Q: Did you ever go into the room?
A: No.
Q: How do you know what was inside the
room if you were never in there?
A: Because I go there once a month.
Q: Well, how do you know - -
A: - - To perform, in there performing, I see
them performing rituals.
Q: Were you in the room or not?
A: No.
Q: Well then how did you know what was in
the room if you were never in there?
A: There’s (indiscernible), I don’t know, I
18
know there is idols.
Q: How do you know that if you never went
in?
A: Because they have some of them outside,
outside, they have some of them outside.
Q: How can you tell me what’s in the room
if you were never there, explain that to
me?
A: I’m not allowed there because, I’m not
part of them and I see some of the idols
inside and outside the room, so that it is
why I’m saying their idols. And they
(indiscernible) in there particular days
and they (indiscernible), they go there to
perform rituals.
Q: So, it’s because there’s idols outside the
room, you think there’s idols inside the
room, although you’ve never seen them?
A: Yes, because they prepare food and a lot
of them outside, they take into the room.
The IJ pursued with extreme insensitivity a subject that
must have been particularly painful to Ms. Fiadjoe - the
murder of Ahmed:
JUDGE TO MS. FIADJOE:
Q: You told me, that you never told Ahmed,
19
that your father had sexually assaulted
you, but apparently, you told Ms. Jansen,
that you told Ahmed about the sexual
assaults, why is that?
A: In fact, I told, Ms. Jansen, that I let
Ahmed know that abuse, but I didn’t
clarify it today.
Q: Well, she’s stating here, that Ahmed was
aware of the sexual assaults by your
father, that’s pretty clear to me.
A: But, I did not tell her about the assault,
the beatings and all, I didn’t clarify it to,
Ms. Jansen.
Q: Well, is she, she a fortune teller, she can
read your mind without you telling her,
it’s clear here, she says that Ahmed was
aware of the sexual assaults by your
father, so, you must have told her. That’s
not what you told me today though, why
is that, why is there a difference between
what, Ms. Jansen, writes in her letter and
what you’ve told me?
A: Because, Ms. Jansen, is the one who let
me know it’s okay to tell, but I did not
explain that, I did not tell this part and
this part, I just say, abuse and say
(indiscernible), I did explain, clarify that
to her, but she let me know that it’s okay
to tell somebody so that you can, I can
feel okay, I can be healed (indiscernible).
Q: Yes, but your double talking me, it says
20
that, just answer my question, the letter
from Ms. Jansen says, that Ahmed knew
about the sexual assaults by your father,
you told me that Ahmed did not know, so
tell me why Ms. Jansen’s telling me one
thing, and why you’re telling me
something else?
A: (No audible response).
Q: I’m waiting for your answer.
A: Please, I don’t know, I don’t have answer
for that.
The concluding portions of the hearing further
demonstrated the IJ’s continuing hostility towards the
obviously distraught Ms. Fiadjoe and his abusive treatment of
her throughout the hearing. He had succeeded in returning
her to the condition which Ms. Jansen had enabled her to
overcome after repeated therapy sessions, breaking down and
dissociating. As reflected in the transcript:
JUDGE FOR THE RECORD
All right, let me go off the record and we’l (sic)
decision.
(OFF THE RECORD)
(ON THE RECORD)
JUDGE RENDERS ORAL DECISION
JUDGE TO MS. FIADJOE
Q: Ms. Fiadjoe, you’ve heard my decision,
you’ve heard what I’ve just said?
A: (No audible response).
Q: Oh, you were sleeping there, you fell
asleep didn’t you?
21
A: (No audible response).
Q: You fell asleep during my decision?
A: No, I’m feeling headache.
Q: Did you hear what I said or were you
asleep?
A: I wasn’t asleep.
Q: Did you hear what I said?
A: I thought that you (indiscernible), so I
didn’t.
Q: Okay, all right, well, what I said was,
that first of all, I don’t believe your
testimony, I think that you were making
up your testimony as you were going
along. Your testimony is contradicted
by, much of it is contradicted by your
own witness, Ms. Jansen, her, her the
letter that she wrote, your testimony
generally doesn’t make any sense. I
further found, and I denied it, basically
because of that, I further found that if I
had found that you were credible, that
you were telling me the truth, I do not
find that - -
(OFF THE RECORD)
(ON THE RECORD)
JUDGE TO MS. FIADJOE
Q: I don’t find that you have been
persecuted and on one of the five
statutory grounds. I don’t find, first of
all, there are relatively few women
involved in this movement, all right,
sexual slaves. They number by 2,200,
now you described it as, as a sexual
22
slave, I read from the State Department it
seems there’s, there’s some sexual
slavery involved with it, but it has a lot to
do with idiolatry and voodoo and fears
and just a lot of nonsense. I don’t find
that a group of 2,200 plus or minus
women would be particular social group,
it’s small group and it’s only in a certain
section of, of Ghana, around the
(indiscernible) region. Even if I found
that it was a particular social group, the
government is not persecuting anyone,
all right, and the government is not
allowing this to continue, they passed a
law in 1998 and they had, there trying to
abolish Trokosi and apparently according
to the State Department, they think that it
will be abolished in the, in the near
future. So, even if it were a particular
social group, that’s these women, a small
group of women, I don’t find that they’ve
been persecuted pursuant to definition of
persecution. And for that reason, I’ve
denied your application, do you
understand, now?
A: Yes.
Q: Okay, the answer is yes.
IV. The Sanitized Oral Decision
On the hearing date the IJ also delivered a sanitized
version of his original crude (and cruel) Oral Decision. It will
23
be referred to as the “IJ Decision”.
Having found that Ms. Fiadjoe was “inadmissible for
presenting a bogus passport to the Immigration authorities”
and also under Section 212(a)(6)(C)(i) (fraud on an
immigration official), the IJ set forth general legal principles
applicable to applications for asylum and for restriction on
removal.
Turning to the circumstances about which Ms. Fiadjoe
testified, the IJ rejected the evidence that Trokosi was a form
of religion, finding that “it does not appear to the Court that
this is a religion, it is rather a cult.”
The bulk of the opinion was devoted to the reasons
why the IJ found Ms. Fiadjoe totally incredible. As he stated
in his original oral decision “I don’t believe your testimony. I
think that you were making up your testimony as you went
along.” The first reason for this finding was Ms. Fiadjoe’s
inability to specify the year in which she returned to her father
after spending eleven years with Aunt Dela. The IJ wrote:
24
The respondent was asked when she returned to
her father and she was unable to tell the Court
when it occurred. If indeed this had transpired
in the respondent’s life and if indeed she was
living safely with her aunt for 11 years, it is
abundantly clear to the court that the respondent
would be able to tell me when she returned
home to that situation that she feared so much.
The second reason that the IJ gave for rejecting Ms.
Fiadjoe’s testimony was the inconsistency he perceived
between her testimony that she had never been in the room in
which her father and other participants performed rituals and
her testimony that there were idols in that room:
The respondent’s father told her that he wanted
her to be a Trokosi slave, she stated that the
father had a room inside his house in which she
was not permitted to enter, in which there were
idols. The Court asked the respondent if she
had never entered that room, how she knew
there was idols inside; and her answer was that
she presumed they were idols inside the room
that she had never entered since they were idols
outside the room. This line of thought on the
respondent’s part is not particularly persuasive.
The IJ found reason to doubt Ms. Fiadjoe’s testimony
in the fact that she returned to her father’s house after
returning with Ahmed from Nigeria:
Ahmed and the respondent in April of 1997,
traveled to Nigeria by bus to live with Ahmed’s
cousin. The cousin of Ahmed apparently made
sexual advances to the respondent, so that after
three weeks, she and Ahmed returned to Ghana
25
and the respondent returned to her father’s
home. The respondent was asked why, if she
had been beaten and raped at her father’s home,
did she return there. She states that she returned
there since she did not want her father to be
angered by the fact that she was with Ahmed.
This absolutely is totally implausible and totally
nonsensical to the Court, insofar as the
respondent was returning to a situation where
she knew she was going to be raped and beaten.
And I don’t believe that she would have any
fear that her father would be angered and if she
did have a fear, that fear would be a lesser fear
than the rape and the beatings that she knew
awaited her. As it turned out, when the
respondent did return, her father not only beat
her but poured hot water on her as a form of
punishment.
The IJ relied upon perceived inconsistencies between
Ms. Fiadjoe’s testimony and her statements to Ms. Jansen as
reflected in Ms. Jansen’s report. He found that Ms. Jansen’s
report cast doubt upon Ms. Fiadjoe’s testimony that her
abusive father was part of the Trokosi sect or that she was a
Trokosi slave:
The respondent submitted to the Court a
letter/report from Social Worker Kathleen
Jansen, which is found at Exhibit 6, tab 2. A
careful examination of Ms. Jansen’s letter
reflects nothing to the effect that the
respondent’s father was a member of the
Trokosi cult, nor that the respondent herself was
a Trokosi slave. The respondent was not able to
explain why what she told the Court, was not
told to the social worker.
26
The IJ found that Ms. Fiadjoe’s testimony that she only
told her grandmother about her father’s sexual abuse is
contradicted by Ms. Jansen’s report which recites that Ms.
Fiadjoe also told her mother about the sexual abuse. The IJ
found contradiction of Ms. Fiadjoe’s testimony that she never
told Ahmed about the sexual nature of her father’s abuse in
the statement in Ms. Jansen’s letter that Ahmed “was aware of
the sexual assaults by her father, but was powerless to stop
them.” Further, the IJ notes an inconsistency between Ms.
Fiadjoe’s statement that she does not know how her father
killed Ahmed and the statement in Ms. Jansen’s report that
“[w]hen she emerged [from the shower], she found her
boyfriend lying shot on the floor.”
The IJ also based his credibility evaluation on
statements that Ms. Fiadjoe made to immigration officials
when she was initially processed after her detention. At the
airport she did not disclose her reason for fleeing Ghana and
“told the Immigration Officer a rather benign reason for
coming here, the fact that she was not able to financially
provide for her siblings.” The IJ referred to the asylum pre-
screening interview document:
That document reflects on page 4, that the
respondent told the Immigration Officer that her
father started beating her three years ago. That
is three years ago prior to March 30 th of 2000,
consequently that would be March of 1997;
however, the respondent told the Court that she
was 7 years of age when the beatings began.
Thus, again we have a diametric difference
between what the respondent told this Court and
what the respondent told the Immigration
Officer during the asylum pre-screening
interview.
Even more interesting is the fact that, again
according to this interview, the respondent told
27
the Immigration Officer that her father never
had sex with her. This totally undermines the
entire case in chief, since her entire case in chief
is based on her father using her as a sex slave.
Whenever the Court sees such a diametric
difference between the testimony that the
respondent has given to the Court and the
testimony that the respondent has given another
member of the Immigration Service, the
credibility of the respondent and the case in
chief gravely suffer.
The IJ emphasized that “[t]he credibility of the
respondent is of extreme importance in assessing the
respondent’s claim . . .. The Court concludes that the
respondent is making up her testimony as she is going along,
she’s making up these scenarios and she is fabricating her
testimony to the Court. . . . the Court again states for the
record that this was a frivolous application and that the
respondent intentionally lied to this Court.”
The IJ provided alternative grounds for denying Ms.
Fiadjoe’s applications for relief. He quoted the State
Department Report describing the Trokosi cult, including the
practice of its priests of maintaining sex slaves at Trokosi
shrines. The IJ then held:
The Court finds that being a Trokosi slave or a
member of the cult, is being a member of a
relatively small group. According to the State
Department, it numbers approximately 2,200
people in a small area, in the southeast portion
of Ghana. The Court will not find that a
Trokosi slave constitutes a particular social
group, insofar as it is rather a minuscule part of
the general population of Ghana.
Had he found Trokosi slaves to be a particular social
28
group, the IJ held that he “would not find that the respondent
is being persecuted as being a member of that social group
and does not qualify for asylum, insofar as I find that this
practice is being stamped out by the government, according to
the State Department reports; and that it can be eradicated by
the government within a short period of time, with the
passage of a law which occurred in 1998.”
A rather confusing observation followed in support of
the IJ’s finding that Ms. Fiadjoe had not established a well-
founded fear of persecution. The IJ appeared to believe that
Ms. Fiadjoe was alleging that she was being persecuted
because she was a member of the Trokosi sect, when in fact
she was asserting that with the acquiescence of governmental
officials, the Trokosi sect was persecuting her, forcing her
into practices totally contrary to her Christian faith. The IJ
observed:
The government does not condone this slavery.
It is perpetuated by a rather small number of
people following an ideology, some type of
voodoo religion or voodoo following, and the
Court does not find that it constitutes a
persecution of this group of women, even if
these women should be classified as a particular
social group. The Court considers the Trokosi
as an isolated aberration of the small segment of
the society in Ghana, but I do not find that it is a
ground for asylum. I do not find that members
of that group are being persecuted for one of the
five statutory grounds for a grant of such relief.
Consequently, for all of these reasons, the Court
finds that the respondent has not established
well-founded fear of persecution as defined, if
she were returned to Ghana. Accordingly her
application for asylum will be denied.
29
Based on the foregoing, the IJ determined i) it was
unnecessary to consider whether Ms. Fiadjoe merited relief as
a matter of discretion; ii) because Ms. Fiadjoe failed to
establish eligibility for asylum, she failed to meet the higher
standard of proof necessary for restriction on removal to
Ghana; and iii) Ms. Fiadjoe does not qualify for relief under
the CAT because she did not establish that she is more likely
than not to be tortured if she returns to Ghana.
The IJ entered orders denying Ms. Fiadjoe’s request
for asylum, for restriction on removal to Ghana and for
withholding removal under the CAT. He ordered that she be
removed from the United States to Ghana.
V. Proceeding before the BIA
On appeal from the IJ’s decision the BIA relied heavily
upon the IJ’s credibility determination: “In denying the
respondent’s applications for relief, the Immigration Judge
found that the respondent was not credible (IJ at 11-12). We
agree.” The BIA advanced two grounds for its credibility
determination - i) perceived inconsistences in her testimony at
the hearing before the IJ and ii) inconsistencies in her
statement at her Asylum Pre-Screening Interview.
With respect to Ms. Fiadjoe’s testimony, the BIA noted
that Ms. Fiadjoe made conflicting claims as to the age when
her Trokosi ritual sexual abuse by her father began, referring
to the following inconsistencies or supposed inconsistencies:
i) in her asylum application and during her testimony Ms.
Fiadjoe claimed that her father began to abuse her sexually
and attempted to rape her when she was seven years old; ii) in
further testimony she asserted that her father had in fact raped
her when she was seven; iii) in her statement given at her
Asylum Pre-Screening Interview she stated that the abuse
began approximately three years prior to her March 2000
interviews and claimed that she did not allow her father to
have sex with her, in contrast to later claims of on-going rape.
30
The BIA concluded that “[b]ecause we have found that the
respondent’s testimony cannot be accepted as credible, it
follows that the respondent has failed to satisfy her burden of
proof and persuasion.”
Further, the BIA held that Ms. Fiadjoe’s claims must
be denied for failure to establish that the government of
Ghana was either unwilling or unable to control her father’s
ritual abuse. In support of this conclusion the BIA noted i)
Ms. Fiadjoe did not seek help of the Ghanian authorities; ii)
the grandmother when reporting the father’s abuse to the
police did not mention the sexual aspect of the abuse; iii) the
government outlawed Trokosi practices and ritual bondage in
1998 and a non-governmental organization had success in
liberating, counseling, and rehabilitating past victims of such
bondage.
The BIA found that Ms. Fiadjoe implicitly admitted
that she could escape her father’s abuse by moving to an
urban area, citing as support; i) Ms. Fiadjoe’s escape when
she fled to Nigeria; ii) her move into an apartment; and iii) her
unconvincing testimony about being impelled to return to the
father’s home after the abortive flight to Nigeria. The BIA
concluded “the respondent’s failure to pursue internal
relocation would likely be a negative discretionary factor even
if we had found that she had suffered past persecution on
account of a protected ground.”
Because the BIA had found that Ms. Fiadjoe had not
testified credibly and that she had failed to demonstrate that
the government of Ghana would be unwilling or unable to
protect her, it did not reach the issue of whether bondage as a
Trokosi slave would meet the definition of persecution on
account of membership in a particular social group or the
issue whether Ms. Fiadjoe, even if credible, had established
that she was, in fact, a Trokosi slave.
Finding that Ms. Fiadjoe had failed to establish the
lower burden of proof required for asylum, the BIA held that
she had failed to meet the higher standard for withholding of
31
removal and that she had failed to establish that it was more
likely than not that she would be tortured upon her return to
Ghana, thus requiring that her request for relief under the
CAT be denied.
With one member, Juan P. Osuna, dissenting, the BIA
dismissed the appeal on June 6, 2003. Ms. Fiadjoe filed in
this court a timely petition for review of the BIA’s decision.
Ms. Fiadjoe also moved for reconsideration of the BIA’s
decision. One of the grounds for the motion to reconsider
was the failure of the BIA to consider certain evidence which
was not before the IJ but which Ms. Fiadjoe submitted in
support of her appeal. In particular she submitted an October
31, 2002 letter of Ms. Jansen which explained why certain of
the statements made in her earlier letter on which the IJ relied
to find that Ms. Fiadjoe lacked credibility constituted Ms.
Jansen’s mistakes or misunderstanding. Ms. Jansen’s October
31, 2002 letter also spelled out in considerable detail the
nature and consequence of the stress from which Ms. Fiadjoe
suffered from her father’s abuse and the effect this stress had
with respect to Ms. Fiadjoe’s responses to questions
concerning sexual abuse matters. The following are a few of
Ms. Jansen’s observations concerning Ms. Fiadjoe’s
emotional state:
It is my professional opinion that Posttraumatic
Stress Disorder, Ms. Fiadjoe’s own mannerisms,
and the Immigration Judge’s lack of awareness
of Ghanian culture contributed to Ms. Fiadjoe’s
responses to questioning by opposing counsel
and, in particular, to the Judge. It is
extraordinarily difficult for sexual abuse victims
to discuss specifics of their abuse experiences.
Given the extreme shame that surrounds these
issues in general they are difficult for both men
and women to discuss. With the addition of the
cultural factors surrounding Ms. Fiadjoe’s
experiences in particular, it should be of no
32
surprise at all that she would be reluctant to
discuss these issues with anyone, most
specifically with a male or in the presence of
several males. It is very typical of victims of
sexual abuse to not be able to accurately recall
dates, ages, number of abuse occurrences and
time lines in general. In addition, I believe
cultural factors played a role. In many cultures
the specifics of dates, time, and ages are not
valued as significantly as they are in western,
industrialized cultures. The combination of
cultural factors and traumatic stress reactions
would be expected to impede one’s memory of
dates, times and ages.
…
I believe I also communicated in my initial letter
that because of her history of severe abuse,
under situations of duress she tends to
dissociate. This means that if she feels
threatened or endangered - physically or
emotionally - she will withdraw from the
situation, become confused, frightened, hesitant,
and may appear to have a blank look on her
face. This is a natural consequence of the
Posttraumatic Stress Disorder from which she
suffers.
…
The Immigration Judge believed that Ms.
Fiadjoe was fabricating her account of rape by
her father because he found inconsistencies.
These inconsistencies are not evidence of
33
dishonesty in Ms. Fiadjoe’s case - they are
evidence of severe Posttraumatic Stress
Disorder. It is also noteworthy that at the time
of this hearing, Ms. Fiadjoe was approximately
seven months postpartum and, by history,
suffered a significant bout of Postpartum
Depression for approximately nine months after
the birth of her daughter. This condition would,
as well, affect both her memory and her
communication style. Similarly it does not at all
surprise me that upon initial questioning by INS
agents Ms. Fiadjoe would reference her father
attempting sexual abuse but deny that he had
had intercourse with her. Fear and shame
would more than explain that circumstance.
Please note that she did disclose the sexual
assaults to her grandmother who immediately
told her it was shameful for her to discuss those
matters. Although the grandmother was willing
to report the physical abuse to the police, she
refused to report or permit Ms. Fiadjoe to report
the sexual violence. I can vehemently affirm
that once a sense of safety and a tentative
working relationship was established with Ms.
Fiadjoe she consistently and clearly disclosed
multiple incidents of violent rape by her father
during our counseling sessions. It is also
important to note that Ms. Fiadjoe’s recounting
of her experiences in her father’s custody never
wavered during our work together. As an
expert in assessing traumatic stress, and an
experienced provider of services to victims of
sexual violence I never saw any indication that
Ms. Fiadjoe was less than truthful with me or
that she was fabricating any of her experiences.
34
In addition to describing Ms. Fiadjoe’s emotional state,
Ms. Jansen took responsibility for creating what appeared to
be inconsistencies between statements contained in her
original letter, which was in evidence before the IJ, and Ms.
Fiadjoe’s testimony. Ms. Jansen explained her failure to use
the term Trokosi in her report, limiting her description of the
father’s behavior as being a “fetish”:
One of the shortcomings of my work with Ms.
Fiadjoe falls to my lack of understanding at that
time about the Trokosi religion and the
definition of a fetish priest. She spoke often of
her father’s fetish practices and interpreting her
words and their meaning was very difficult.
She did state on many occasions that her father
would be intoxicated just prior to him raping
her, and based on my own cultural background I
connected the term “fetish” to her father’s abuse
of alcohol. I did not at that time investigate the
religious practices of fetish priests and was
unaware of the specifics of the Trokosi religion.
Since that time, I have learned more about that
religion and its practices and it fits precisely
with the experiences she was relating to me.
Again, my focus was on her immediate physical
and psychological well being and I failed to
investigate the cultural implications fully.
Addressing the statement in her original letter that Ms.
Fiadjoe had informed Ahmed of the father’s sexual abuse,
Ms. Jansen wrote:
There was some controversy over whether Ms.
Fiadjoe discussed these matters with her fiancé,
Ahmed. In reviewing my notes, I make
reference to the fact that Ahmed was “aware of
the abuse by her father”. When consulting my
notes to prepare the initial letter, I interpreted
35
them to mean both the physical and sexual
abuse. I cannot now independently recall
whether I specifically referred to the physical
and sexual abuse when discussing this matter
with Ms. Fiadjoe. It would not at all surprise
me that she would have told him about the
physical abuse but not the sexual abuse. Indeed,
noting the cultural taboos and shame involved,
it is very likely that she would not tell Ahmed of
the multiple violent rapes she endured at the
hands of her father.
Addressing the subject of the manner of Ahmed’s
death, Ms. Jansen explains that she merely inferred that he
had been shot and does not recall that Ms. Fiadjoe informed
her that he had been shot:
There appeared to be additional controversy
over Ms. Fiadjoe’s knowledge of the manner of
Ahmed’s death. Again, in reviewing my notes,
I documented that while in the “shower room”
Ms. Fiadjoe heard a “loud noise” and upon
entering her bedroom, found Ahmed dying on
the floor. I believe that it was my interpretation
of events that Ahmed had been shot. I
apologize for the confusion that interpretation
caused. I have no independent recollection of
Ms. Fiadjoe specifically stating the manner of
death. Recall, please, that the purpose of my
services was not an investigative one. When I
began seeing Ms. Fiadjoe she was not able to
eat properly, was not sleeping consistently, was
experiencing severe flashbacks and distressing
nightmares, and was attempting to adjust to an
extremely foreign environment. It was my
purpose to alleviate the immediate
psychological pain and suffering and to assist
36
her in adjusting to her new environment. The
exact manner of her fiancé’s murder was
inconsequential to the critical task at hand.
Apart from the failure of the BIA to consider this
additional evidence, Ms. Fiadjoe advanced four other grounds
for reconsideration; i) the BIA’s reliance upon Ms. Fiadjoe’s
statements to an INS officer upon arrival as a basis for a
negative credibility finding; ii) its finding that Ms. Fiadjoe
had failed to carry her burden that the government of Ghana
was unable or unwilling to assist her; iii) its finding that Ms.
Fiadjoe could have relocated to another part of Ghana; and iv)
the BIA’s failure to consider Ms. Fiadjoe’s persecution on
account of her religion as a Christian opposed to Trokosi and
her feminist political opinion that women should be educated
and not subjugated to men.
The BIA denied the motion for reconsideration stating
that Ms. Fiadjoe had not identified any change of law, new
legal argument or error in the BIA’s previous analysis that
would move it to reconsider its decision. It noted that the
inconsistent statements to an immigration officer upon which
it relied to support its credibility finding were not made at the
airport immediately after landing but were made some weeks
later during a fair and thoughtful interview, thus rendering
Ms. Fiadjoe’s reliance upon the cases cited in support of the
motion misplaced.
Ms. Fiadjoe filed in this Court a petition for review of
the denial of the motion for reconsideration. That petition has
been consolidated with the original petition for review.
VI. Discussion
A. Jurisdiction and Standard of Review: We have
jurisdiction to review final orders of the BIA under §242(a)(1)
of the Immigration and Nationality Act, 8 U.S.C. §1252(a)(1)
(1999).
Both the IJ and the BIA made an adverse credibility
determination. The final order that we review is the decision
37
of the BIA, and normally we review the decision of the BIA,
not the IJ, Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002);
Abdulai v. Ashcroft,
239 F.3d 542 545 (3d Cir. 2001). There
are exceptions to this rule. If, for instance, the BIA affirms
the IJ’s decision for the reasons set forth in that decision, the
IJ’s opinion effectively becomes the BIA’s, and, accordingly,
a court must review the IJ’s decision. Korytnyuk v. Ashcroft,
396 F.3d 272, 286 (3d Cir. 2005).
In the present case the BIA stated at the outset that it
agreed with the IJ’s finding that Ms. Fiadjoe was not credible.
It then set forth a single paragraph devoted to the credibility
issue, listing two of the inconsistencies upon which the IJ had
relied. Thus, as in Xie v. Ashcroft, 359 F.3d 239 (3d Cir.
2004), we address the circumstance in which “the BIA both
adopted the IJ’s adverse credibility determination and
discussed some, but not all, of the underlying bases for the
IJ’s adverse credibility determination.”
Id., at 242. In the
present case, in light of its expression of agreement with the
IJ’s credibility finding and its own sketchy credibility
analysis, the BIA must have relied upon the adverse
credibility finding of the IJ. We thus have jurisdiction to
review both the BIA’s and IJ’s opinions.
Id., at 242; see also,
Miah v. Ashcroft,
346 F.3d 434 (3d Cir. 2003); Senathirajah
v. INS,
157 F.3d 210 (3d Cir. 1998). There is an additional
reason to review the INS decision and the hearing from which
the decision derived. Any adverse credibility determinations
based on the testimony must be viewed with great caution in
view of the abusive nature of the hearing.
Adverse credibility determinations are reviewed under
the substantial evidence standard. Under this standard, the
BIA’s adverse credibility determination must be upheld on
review unless any reasonable adjudicator would be compelled
to conclude to the contrary. Minor inconsistencies do not
provide an adequate basis for an adverse credibility finding.
Xie, 359 F.3d at 243.
Apart from its adverse credibility determination, the
38
BIA found that Ms. Fiadjoe failed to establish that the
government of Ghana was either unable or unwilling to
control her father’s ritual sexual abuse 3 . We must uphold this
factual finding if it is “supported by reasonable, substantial,
and probative evidence on the record considered as a whole.”
INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). We should
find substantial evidence lacking only where the evidence
“was so compelling that no reasonable fact finder could fail to
find the requisite fear of persecution.”
Id. at 483-84; see also
8 U.S.C. §1252(b)(4)(B); Abdille v. Ashcroft,
242 F.3d 477,
483-84 (3d Cir. 2001).
B. The IJ Hearing and Credibility Finding 4 : Prior to
the commencement of testimony before the IJ on April 30,
2002 the IJ identified the record in his possession. It included
Ms. Fiadjoe’s July 5, 2001 asylum affidavit (Form I-589)
which recited in full detail the circumstances that led to her
flight - the commencement of her father’s sexual abuse at age
seven, the resumption of her life as a Trokosi slave at age
eighteen and the continuing beatings and periodic rape
committed by her father. It recited her attempts to escape
from her father’s house, her flight to Nigeria, her return, her
father’s murder of the man whom she loved and hoped to
marry, and her second flight and inability to find someone in
Accra who would take her in.
Also in the record which the IJ possessed was Ms.
3
The BIA did not reach the issues of i) whether bondage as
a Trokosi slave would meet the definition of persecution on account
of membership in a particular social group; ii) whether if Ms.
Fiadjoe’s testimony were credible she had “established that she was,
in fact, a Trokosi slave;” and iii) whether Ms. Fiadjoe could escape
persecution by locating elsewhere in Ghana.
4
Significantly, on this appeal the government made no
attempt to defend the credibility determinations of either the IJ or the
BIA.
39
Jansen’s June 22, 2000 letter describing her therapy sessions
with Ms. Fiadjoe and Ms. Fiadjoe’s emotional state. Ms.
Jansen recounted how Ms. Fiadjoe’s emotional condition
improved markedly after sessions of counseling and that
although “[h]er communication abilities have improved,” she
nevertheless “continues to occasionally dissociate when
discussing emotionally painful events.” It was, of course,
necessary to testify about emotionally painful events at the
April 30, 2002 hearing.
The INS Guidelines entitled “Consideration for
Asylum Officers Adjudicating Asylum Claims from Women”
describe in general terms the phenomena that Ms. Jansen
observed in Ms. Fiadjoe. The Guidelines are as applicable to
an IJ credibility determination as they are to an Asylum
Officer’s credibility determination, e.g.,:
Women who have been raped or otherwise
sexually abused may be seriously stigmatized
and ostracized in their societies. They may also
be subject to additional violence, abuse or
discrimination because they are viewed as
having brought shame and dishonor on
themselves, their families, and their
communities.
…
Women who have been subject to domestic or
sexual abuse may be psychologically
traumatized. Trauma can be suffered by any
applicant, regardless, of gender, and may have a
significant impact on the ability to present
testimony.
The demeanor of traumatized applicants can
vary. They may appear numb or show
40
emotional passivity when recounting past events
of mistreatment. Some applicants may give
matter-of-fact recitations of serious instances of
mistreatment. Trauma may also cause memory
loss or distortion, and may cause other
applicants to block certain experiences from
their minds in order not to relive their horror by
the retelling.
In Anglo-American cultures, people who avert
their gaze when answering a question, or seem
nervous, are perceived as untruthful. In other
cultures, however, body language does not
convey the same message. In certain Asian
cultures, for example, people will avert their
eyes when speaking to an authority figure as a
sign of respect. This is a product of culture, not
necessarily of credibility.
It bears reiteration that the foregoing
considerations of demeanor can be the products
of trauma or culture, not credibility. Poor
interview techniques/cross-cultural skills may
cause faulty negative credibility findings.
From the outset of the April 30, 2002 hearing the IJ
took over much of the questioning of Ms. Fiadjoe, both on
direct and on cross-examination by the government. His tone
was hostile and at times became extraordinarily abusive. If
not by design, in effect, he produced the very atmosphere that
Ms. Jansen and the INS Guidelines anticipated would cause
memory loss, blocking, dissociating and breakdown.
Examining Ms. Fiadjoe concerning the highly sensitive
subject of her father’s sexual abuse at age seven, the IJ’s
questioning reduced her to tears (see transcript excerpt at.
pp.14-16, supra).
41
At that point in the proceedings Ms. Fiadjoe began
having difficulty responding to the IJ. She had been born in
1971. In response to her attorney’s questions she testified that
she went to live with her Aunt Dela in Accra when she was
seven, i.e., in 1978, thus bringing the sexual abuse to a
temporary halt. She further testified that she remained with
Aunt Dela eleven years and was 18 years of age when she
returned to her father’s home upon the death of Aunt Dela. A
rather simple calculation would have placed this in the year
1989, but under the IJ’s harsh questioning Ms. Fiadjoe was
unable to recall the year and was reduced to an inability to
respond (see transcript excerpt at pp 16-17, supra).
The bullying nature of the IJ’s questioning was further
evident in his interrogation of Ms. Fiadjoe about her
knowledge that her father kept idols in the room in which he
worshiped when she testified that she had never been in the
room. Ignoring the obvious point that Ms. Fiadjoe made, that
she could see into the room without entering it, the IJ
continued to badger her (see transcript excerpt at p. 17-18
supra).
Dealing with a subject that can only have been
extremely painful to Ms. Fiadjoe, her father’s murder of her
fiancé Ahmed, the IJ pursued an apparent inconsistency
between Ms. Fiadjoe’s testimony and Ms. Jansen’s report
concerning whether Ms. Fiadjoe had told Ahmed about the
sexual aspect of the abuse she had suffered. The IJ reduced
Ms. Fiadjoe to an inability to respond to his questions (see
transcript excerpt at pp 18-19 supra).
These are examples of the manner in which the IJ
treated Ms. Fiadjoe throughout the hearing. An examination
of the entire transcript discloses other instances of his extreme
insensitivity towards the witness and his failure to take into
account the abuses to which she had been subjected in Ghana.
The IJ’s own concluding questions and remarks demonstrate
that he had reduced her to the emotional state against which
Ms. Jansen and the INS Guidelines had warned:
42
JUDGE TO MS. FIADJOE
Q: Ms. Fiadjoe, you’ve heard my decision,
you’ve heard what I’ve just said?
A: (No audible response).
Q: Oh, you were sleeping there, you fell
asleep didn’t you?
A: (No audible response).
Q: You fell asleep during my decision?
A: No, I’m feeling headache.
Q: Did you hear what I said or were you
asleep?
A: I wasn’t asleep.
Q: Did you hear what I said?
A: I thought that you (indiscernible), so I
didn’t.
Q: Okay, all right, well, what I said was,
that first of all, I don’t believe your
testimony, I think that you were making
up your testimony as you were going
along. Your testimony is contradicted
by, much of it is contradicted by your
own witness, Ms. Jansen, her, her, the
letter that she wrote, your testimony
generally doesn’t make sense. I further
found, and I denied it, basically because
43
of that, I further found that if I had found
that you were credible, that you were
telling me the truth, I do not find that - -
(OFF THE RECORD)
As the INS Guidelines stated, “[p]oor interview
techniques/cross-cultural skills may cause faulty negative
credibility findings”. They most certainly did so in this case.
The conduct of the IJ by itself would require a
rejection of his credibility finding. Apart from that
consideration, the formal reasons he gave for finding “that the
respondent is making up her testimony as she is going along,
she’s making up these scenarios and she is fabricating her
testimony to the Court” do not withstand examination.
First, the IJ relied upon Ms. Fiadjoe’s inability to state
the year when she returned from Aunt Dela to her father’s
house. It is true that Ms. Fiadjoe, after being subjected to the
IJ’s brow beating, could not recall the year of her return.
However, she testified that she was born in 1971, left for Aunt
Dela’s home when she was seven (1978) and returned after
eleven years when she was eighteen years of age. The
inability to recall during the stress of the hearing that the year
of return was 1989 does not affect credibility.
The IJ found that Ms. Fiadjoe’s testimony that her
father kept idols in the shrine room in his home was
inconsistent with her testimony that she never entered the
room. In spite of the badgering nature of the IJ’s questioning,
Ms. Fiadjoe fully explained that without entering she could
see into the room, that idols were also kept outside the room,
and that she observed other Trokosi adherents enter the room
to bring food to the idols and later leave. There was no
inconsistency in her testimony.
Referring to Ms. Fiadjoe’s testimony about her return
to her father’s home after her and Ahmed’s abortive attempt
to establish a residence in Nigeria, the IJ attributes to Ms.
44
Fiadjoe the statement that “she returned there since she did
not want her father to be angered by the fact that she was with
Ahmed.” The IJ found that “[t]his absolutely is totally
implausible and totally nonsensical to the Court, insofar as the
respondent was returning to a situation where she knew she
was going to be raped and beaten.” The IJ’s subsequent
observations make no sense: “And I don’t believe that she
would have any fear that her father would be angered and if
she did have a fear, that fear would be a lesser fear than the
rape and the beatings that she knew awaited her. As it turned
out, when the respondent did return, her father not only beat
her but poured hot water on her as a form of punishment.” In
the first place the IJ does not give an accurate recital of Ms.
Fiadjoe’s testimony. She did not want her father to attack
Ahmed but the reason she gave for returning to her father was
that “I don’t, my father, I don’t have anybody to go to,” a fact
that, as will be discussed in connection with the BIA’s
credibility finding, is fully supported by the record.
Next, the IJ found Ms. Fiadjoe lacked credibility
because “Ms. Jansen’s letter reflects nothing to the effect that
respondent’s father was a member of the Trokosi cult, nor that
the respondent herself was a Trokosi slave. The respondent
was not able to explain why what she told the Court, was not
told to the social worker.” The IJ’s premise that Ms. Fiadjoe
did not tell Ms. Jansen about the Trokosi sect is totally wrong,
even if reference is made only to the letter in evidence before
the IJ. Repeatedly throughout the asylum proceedings Ms.
Fiadjoe referred to her father’s Trokosi practices as his
“fetish.” In her June 22, 2000 letter Ms. Jansen writes, “Ms.
Fiadjoe describes her father as having a religious “fetish.”
Ms. Jansen at that time did not understand what Ms. Fiadjoe
was telling her, a misunderstanding which she later overcame,
as explained in her October 31, 2002 letter, which will be
discussed further in connection with the BIA’s credibility
determination. In any event, the IJ was simply in error when
he stated that Ms. Jansen’s letter reflects nothing to the effect
45
that Ms. Fiadjoe’s father was a member of the Trokosi cult.
The IJ perceived two other inconsistencies between
Ms. Fiadjoe’s testimony and what appeared in Ms. Jansen’s
June 22, 2000 letter. He assumed Ms. Fiadjoe told Ms.
Jansen what was stated in the letter. First, Ms. Fiadjoe
testified that she never told Ahmed about the sexual assaults
upon her, whereas the letter states Ahmed “was aware of the
sexual assaults by her father, but was powerless to stop them.”
Second, Ms. Fiadjoe testified that, not having seen her father
kill Ahmed, she did not know how he was killed, whereas the
letter states “[w]hen she emerged, she found her boyfriend
lying shot on the floor.” (emphasis added). As disclosed in
Ms. Jansen’s October 21, 2002 letter (which was not before
the IJ), these inconsistencies resulted from Ms. Jansen’s
erroneous assumptions, not from misstatements of Ms.
Fiadjoe. Even if there were such inconsistencies (which there
were not), they were minor in nature. In the entire flow of
events that afflicted Ms. Fiadjoe from age seven until she fled
from Ghana, it was immaterial whether Ahmed knew of the
sexual abuse as well as the other forms of abuse perpetrated
by the father and whether the father shot or stabbed Ahmed,
the only likely other means of killing him.
The IJ relied upon statements that Ms. Fiadjoe made to
Immigration officers upon her arrival in the United States and
upon the occasion of her Asylum Pre-screening Interview on
March 30, 2000, which are inconsistent with her asylum
affidavit, the information she provided Ms. Jansen and her
testimony. For reasons that will be set forth in the discussion
of the BIA’s credibility determination, these statements do not
constitute substantial evidence that would permit a finding
that Ms. Fiadjoe lacked credibility.
As the IJ expressed it, “[t]he credibility of the
respondent is of extreme importance in assessing respondent’s
claim.” No adverse credibility assessment derived from a
hearing conducted under the circumstances and in the manner
that the IJ conducted the April 30, 2002 hearing could survive
46
review. Further, even if the hearing were conducted in an
even-handed, fair manner, the reasons that the IJ gave for his
finding of lack of credibility are not supported by substantial
evidence.
C. The BIA’s Credibility Finding: Of necessity the
BIA had before it the transcript of the IJ hearing and the
documentary record. Ms. Fiadjoe’s asylum application, her
recital of events during her counseling with Ms. Jansen and
her testimony at the hearing were consistent in their detailed
description of the extended series of horrifying events that
occurred in her life from age seven until her flight from
Ghana after the murder of Ahmed. Despite the IJ’s
conclusion that “[she was] making up her testimony as [she
was] going along,” it is highly improbable that anyone could
consistently recount these events in detail on each of these
three occasions.
The BIA, apart from its general agreement with the IJ’s
adverse credibility determination, relied upon two grounds for
its own adverse credibility determination: i) a purported
inconsistency in Ms. Fiadjoe’s testimony concerning the
nature of the sexual abuse that her father perpetrated upon her
at age seven, and ii) the inconsistencies in her sworn
statement before an Asylum Officer given approximately
nineteen days after she was taken into custody at the airport.
Despite the critical nature of the issue and the extensiveness
of the record, the BIA devoted a mere twelve lines of its
opinion to set forth the reasons for its credibility finding.
As to the sexual abuse at age 7, the BIA decision
stated:
She claimed in her written asylum application
and during her testimony in immigration court
that her father began to abuse her sexually and
attempted to rape her when she was 7 years old
(Exh. 6-2 at 2; Tr. at 25). Shortly thereafter, she
modified her testimony somewhat and claimed
that her father had in fact raped her when she
47
was 7 (Tr. at 32).
In her asylum application (Exh. 6-2 at 2) Ms. Fiadjoe
stated, “[a]fter my parent’s [sic] separation, I lived with my
father and he began to sexually abuse me. This started when I
was 7 years old.” At her hearing (Tr. at 25) Ms. Fiadjoe
testified, “[a]t the age of seven, he’s tried to rape me and
abuse me and beat me up and want me to be part of Trokosi,
Trokosi.” At the point in the hearing when the IJ had reduced
Ms. Fiadjoe to tears and berated her for crying and “beating
around bush” he asked her how long her father beat or raped
her (Tr. at 32), to which she responded before dissolving into
tears “[f]or, till I was seven, I know my father was raping
me.” There is no necessary inconsistency in these statements.
Sexual abuse during a three months’ period could plausibly
include both attempted rape and rape. Moreover, it is
unreasonable to expect a person to remember whether the
repeated sexual abuse she suffered at age seven constituted
attempted rape or actual rape. In the present case, in light of
what followed in the ensuing years, any imprecision in this
regard cannot rationally be a basis for an adverse credibility
finding.
As to the inconsistencies in the statement before the
Asylum Officer, the BIA decision stated:
However, the respondent stated in a sworn
statement before an asylum officer with the
Immigration and Naturalization Service (now
the Department of Homeland Security, DHS)
that the abuse began approximately 3 years prior
to her interview in 2000 (Exh. 6-9 at 4), when
she would have been 26 or 27. In fact, she
claimed in that interview that she never allowed
her father to have sex with her (id.), in stark
contrast to her later claims of on-going rape (Tr.
at 27-28, 76, 78-79).
48
On March 30, 2000 Asylum Officer James L. Reaves
conducted an Asylum Pre-Screening Interview. There can be
no criticism of the manner in which he conducted the
interview. He ensured that Ms. Fiadjoe had an interpreter in
the Twi language. His questions were concise. There is every
reason to believe that he, unlike the IJ, followed the INS
Memorandum on Considerations for Asylum Officers
Adjudicating Asylum Claims from Women, dated May 6,
1995.
With one exception, the answers Ms. Fiadjoe gave to
him were fully consistent with her subsequent asylum
application, her statements to Ms. Jansen and her hearing
testimony. They included information about her family, her
father’s beatings, her flight from home, the murder of her
fiancé, and her inability thereafter to find refuge with Aunt
Dela’s husband, her mother and stepfather and the friend in
Accra. Ms. Fiadjoe’s statement before Officer Reaves
departed from her asylum application, the information she
gave to Ms. Jansen and her hearing testimony in the following
respect:
Q: Have you ever been harmed in your
country by anyone?
A: Yes, by my father.
Q: What did your father do to you?
A: He abused me by beating me.
Q: When did this happen?
A: He started doing this about 3 years ago.
Q: Did you live with him at that time?
A: Yes, I was staying at home.
Q: How long did this continue?
A: This continued for 3 years, sometimes he
tried to have sex with me.
Q: Did you ever have sex with your father?
A: No, I never allowed it.
Q: When did this happen?
A: It happened many times during the three
49
years. When someone came to the house
to marry me he would reject them.
Q: When did this end?
A: It never ended until I ran away from
home. He wanted me to marry an old
man, I told him no. A friend came over
to my house. I went to take a shower and
when I returned the friend was dead. I
think my father killed my boyfriend. He
was 33 years old.
Q: Did your father kill this young man?
A: I was in the shower, when I came out my
father was coming out of my room. I
don’t know what he used to kill him.
To determine whether this discrepancy constitutes
substantial evidence to support the IJ’s and the BIA’s adverse
credibility determinations, it is necessary to examine the
circumstances in which the statement was given. Only
nineteen days previously, March 11, 2000, Ms. Fiadjoe had
arrived in this country traumatized by years of sexual
oppression, the March 5 murder of her fiancé and a desperate
but futile effort to find refuge from her father in Accra. On
her arrival at the airport she was questioned by an INS Officer
and gave nonsensical answers. For example, when asked why
she left her home country she responded “I want to look after
my mother.”
It is established in this Circuit that inconsistencies
between an airport statement and an asylum seeker’s
testimony before an IJ is not sufficient, standing alone, to
support a BIA finding that the petitioner was not credible.
Balasubramanrim v. INS, 143 F.3d 157, 164 (3d Cir. 1998).
50
Such an interview is likely to be hurried; language difficulties
arise; the results may be inaccurately recorded, and an
arriving alien who has suffered abuse in his home country
may be reluctant to reveal full information in his or her first
meeting with the government. Id., at 162-3. As we stated in
Senathirajah v. INS,
157 F.3d 210, 218:
By placing too much reliance on an airport
interview under the circumstances here, and
ignoring more detailed accounts in Form 1-589
as well as testimony at an asylum hearing, the
INS seriously undermined the reliability of the
administrative process.
The Asylum Officer’s interview of Ms. Fiadjoe was
not conducted at the airport shortly after her arrival; it was
conducted on March 30, 2002, approximately nineteen days
later, at the York County Prison. Yet conditions similar to,
and in many ways worse than, those at an airport interview
prevailed. Ms. Fiadjoe was still in a state of shock resulting
from the devastating experiences prior to March 11. Ms.
Jansen described Ms. Fiadjoe’s emotional state which existed
at the time of the Asylum Officer’s interview and thereafter
until she had undergone counseling with Ms. Jansen:
In the aftermath of her fiancee’s murder, Ms.
Fiadjoe was in a state of shock. She reports
symptoms that are textbook acute psychological
trauma. Without significant training in trauma
psychology, she would be very unlikely to
falsely report those symptoms much less
describe them in the details as she and I have
discussed them.
Finding herself in a strange place before a male officer
it is not surprising that Ms. Fiadjoe would be unable to
discuss the shameful and taboo incidents of incestuous rape.
In both her letters Ms. Jansen described Ms. Fiadjoe’s
51
emotional state when she first saw her and recounted that it
was not until Ms. Fiadjoe had engaged in a number of therapy
sessions that she was able to discuss fully, even with her,
sexual abuses which her father had committed. Completely
consistent with the INS Memorandum concerning
considerations for adjudicating claims of women, Ms. Jansen
wrote in her October 31, 2002 letter:
It is extraordinarily difficult for sexual abuse
victims to discuss specifics of their abuse
experiences. Given the extreme shame that
surrounds these issues in general they are
difficult for both men and women to discuss.
With the addition of the cultural factors
surrounding Ms. Fiadjoe’s experiences in
particular, it should be of no surprise at all that
she would be reluctant to discuss these issues
with anyone, most specifically with a male or in
the presence of several males.
Asked on cross examination why she had not informed
the INS Officer about what had happened, Ms. Fiadjoe
responded, “About sexual aspects, my father sleeping with
me, I don’t feel comfortable telling people . . ..” The BIA
considered none of these factors when rendering its decision.
As discussed above, the inconsistency in Ms. Fiadjoe’s
statement to the Asylum Officer is all that is left that reflects
on Ms. Fiadjoe’s credibility. None of the other reasons given
by either the IJ or the BIA support an adverse credibility
determination. By placing reliance on this interview under
the circumstances in which it was taken and “ignoring more
detailed accounts in Form 1-589 as well as testimony at an
asylum hearing, the INS seriously undermined the reliability
of the administrative process.” Senathirajah, 157 F.3d at 218.
Neither the IJ’s nor the BIA’s adverse credibility
determination is supported by substantial evidence.
D. Government Protection: Under 8 U.S.C.
52
§1158(b)(1), the Attorney General may grant asylum to an
alien who is a “refugee” within the meaning of 8 U.S.C.
§1101(a)(42). Generally speaking, an applicant must show
that he or she:
is unable or unwilling to return to, and is unable
or unwilling to avail himself or herself of the
protection of [the country of such person’s
nationality or in which such a person last
habitually resided], because of persecution or a
well-founded fear of persecution on account of
race, religion, nationality, membership in a
particular social group, or political opinion . . .
8 U.S.C. §1101(a)(42)(A). A showing of past persecution
gives rise to a rebuttable presumption of a well-founded fear
of future persecution. 8 C.F.R. §1208. 13(b)(1).
To establish persecution, an alien must show past or
potential harm rising to the level of persecution on account of
a statutorily enumerated ground that is committed by the
government or by forces the government is unable or
unwilling to control. See Gao v. Ashcroft, 299 F.3d 266, 272
(3d Cir. 2002).
The BIA found that Ms. Fiadjoe’s claim for asylum
must be denied for failure to establish that the government of
Ghana was either unable or unwilling to control her father’s
ritual sexual abuse. The BIA’s evidential support for this
finding is set forth in its entirety in a bare six lines of its
decision:
The respondent never sought the help of the
authorities in Ghana (Tr. at 66). The respondent
claimed that her grandmother told the police of
the respondent’s being beaten but that she
declined to tell the authorities about the ritual
sex abuse due to shame (Tr. at 29. The
respondent submitted evidence that the
government of Ghana outlawed Trokosi practice
53
and ritual bondage in 1998 and that a non-
governmental organization has had success in
liberating, counseling, and rehabilitating past
victims of such bondage. (Exh. 6-5).
In the context of the record viewed in its entirety, these
two snippets of information, both of them inadequately stated,
do not constitute substantial evidence to support the BIA’s
finding that Ms. Fiadjoe has failed to establish that the
government of Ghana was either unable or unwilling to
control her father’s ritual sexual abuse. The BIA totally
ignored the evidence in the record that establishes the deep
hold that the Trokosi religion has upon substantial elements of
the Ghanian people. For example:
Appalled by the practice, some Ghanians have
broken the fearful silence which surrounds
Trokosi. But their calls for it to be banned have
had little impact on the centuries old tradition
which has the blessing of some of Ghana’s most
powerful man. Jerry Rawlings, the country’s
charismatic if not exactly democratic, president
- himself an Ewe - has spoken of Trokosi as an
important part of Ghana’s cultural heritage.
Booker, Slave of the Fetish, the Independent - London (June
16, 1996) (R. 363)5 .
5
The dissenting opinion concludes that we have failed to
accord proper deference to the BIA’s finding on the issue of
government protection in Ghana. The lengthy quotation from the
State Department’s 2000 Country Report on Human Rights Practices
in Ghana to which the dissent refers does in fact set forth efforts of
the government and human rights organizations to end the Trokosi
practice, but the concluding portion of the quotation recites how
ineffective the government efforts have been despite limited success
54
Nor is it easy to escape from Trokosi slavery.
Speaking of his slaves, one Trokosi priest stated, “Their
families wouldn’t take them back. They’re too afraid of
angering the fetish.”
The BIA was incorrect when it stated that “[t]he
respondent never sought the help of the authorities in Ghana.”
Ms. Fiadjoe did seek such help through her grandmother who
twice sought assistance from the police. It is true, as the BIA
states, that the grandmother was too ashamed to mention the
sexual aspect of the abuse, but the record is replete with
evidence that the police would have done nothing even if they
by NGOs:
The Government has not prosecuted any
practitioners of Trokosi and in August 1999,
a presidential aide criticized anti-Trokosi
activists for being insensitive to indigenous
cultural and “religious” beliefs and practices.
A local group, calling itself the “Troxovi
Institutional Council” (Troxovi is an alternate
spelling for Trokosi) declared that Trokosi, as
defined by CHRAJ and other human rights
groups to be a form of ritual servitude, does
not exist in the country. The group claimed
that the practice of “Troxovi” does exist but
neither enslaves nor exploits anyone. The
Council also listed 23 ‘genuine Troxovi
shrines’ in Ghana, describing them as
educational institutions and as part of the
“Afrikania religion.” The claims were widely
refuted by chiefs, the press, and NGOs.
AR:343-44 (emphasis added)
55
had been informed of that aspect of the abuse 6 .
The most recent State Department Report covering
Ghana shows how futile resort to the police would have been.
Multiple pages are devoted to the brutality and corruption of
the police and their refusal to prosecute sensitive crime, as
Trokosi sexual practices certainly were, particularly in a
village inhabited by believers in the sect. The Report notes
that “[v]iolence against women, including rape and domestic
violence remains a significant problem. A 1998 study
revealed that particularly in low-income, high-density sections
of greater Accra, at least 54 percent of women have been
assaulted in recent years. A total of 95 percent of the victims
of domestic violence are women according to data gathered
by the FIDA. These abuses generally go unreported and
seldom come before the courts. The police tend not to
intervene in domestic disputes.”
Ms. Fiadjoe’s own experiences demonstrate that where
a Trokosi slave is involved the police will not intervene. She
had to flee to another country to escape from her father,
where, unfortunately she was unable to stay. When she
obtained her own room from a landlord in her neighborhood,
her father so terrorized the landlord that he turned her out.
Surely if the landlord had thought he could have obtained
appropriate protection for himself and his tenant he would
have turned to the public authorities. Similarly, when Ms.
Fiadjoe fled to Accra after Ahmed’s murder, her own mother
did not dare to take her in, nor did her Aunt Dela’s husband,
6
The dissent finds Fiadjoe’s hearing testimony vague
concerning what her grandmother told the police. When evaluating
Ms. Fiadjoe’s testimony it should be kept in mind that it was given
during a hearing at which the IJ treated Ms. Fiadjoe with total
insensitivity throughout, causing her to break down, become confused
and ultimately to become reduced to silence. The BIA majority took
no account of this factor.
56
nor did an old friend. The old friend was so frightened that
the father would suspect that Ms. Fiadjoe had come to him
that he removed her to a girlfriend’s house, of which the
father was presumably unaware, and assisted her in obtaining
a false passport for flight out of the country. If the authorities
were willing or able to protect this Trokosi slave none of this
flight and fear would have been necessary7 .
The BIA selected two facts set forth in the State
Department Report: i) “the government of Ghana outlawed
Trokosi practice and ritual bondage in 1998" and ii) “a non-
governmental organization has had success in liberating,
counseling, and rehabilitating past victims of such bondage.”
(emphasis added). This selective use of the State Department
Report is misleading and does not constitute substantial
evidence.
In the first place, the BIA ignored other evidence in the
record demonstrating continuation of Trokosi slavery and the
government’s unwillingness and inability to end it. The State
Department Report itself confirms this continuation despite
the 1998 legislation that banned “‘customary servitude’
(known as Trokosi)”.
The Ghanian Constitution had for a long time
prohibited such practices. “Every person has a right to
personal liberty.” Art. 14. “No person shall be held in
slavery and servitude or be required to perform forced labor.”
Art. 16. These provisions had had no effect on the Trokosi
cult. Similarly the 1998 legislation outlawing Trokosi has not
succeeded in eliminating Trokosi slavery. While it is true that
7
These facts, along with much other evidence, totally negate
the BIA’s statement that “respondent implicitly admitted that she
could escape her father’s abuse by moving to an urban area.” It is
unnecessary to rule at this time that this finding also is not supported
by substantial evidence because the BIA only advanced it in a
hypothetical context.
57
certain organizations have succeeded in liberating and
retraining approximately 2,800 Trokosi slaves, the 2001 State
Department Report confirms that the practice remains very
much alive:
Trokosi, a traditional practice found among the
Ewe ethnic group and in part of the Volta
Region, is an especially severe human rights
abuse and an extremely serious violation of
children’s and women’s rights. It is a system in
which a young girl, sometimes under the age of
10, is made a slave to a fetish shrine for
offenses allegedly committed by a member of
the girl’s family. In rare instances, boys are
offered. The belief is that, if someone in that
family has committed a crime, such as stealing,
members of the family may begin to die in large
numbers unless a young girl is given to the local
fetish shrine to atone for the offense. The girl
becomes the property of the fetish priest, must
work on the priest’s farm, and perform other
labors for him. Because they are the sexual
property of the priests, most Trokosi slaves have
children by the priests. Although the girls’
families must provide for their needs such as
food, most are unable to do so. There are at
least 2,200 girls and women bound to various
shrines in the Trokosi system, a figure that does
not include the slaves’ children. Even when
freed by her fetish priest from the more onerous
aspects of her bondage, whether voluntarily or
as a result of intervention by activists, a Trokosi
woman generally has few marketable skills and
little hope of marriage and typically remains
bound to the shrine for life by psychological and
social pressure arising from a traditional belief
that misfortune may befall a Trokosi woman’s
58
family or village if she abandons her obligations
to the shrine. When a fetish slave dies, her
family is expected to replace her with another
young girl, thus perpetuating the bondage to the
fetish shrine from generation to generation.
Human rights organization are hopeful that ultimately
Trokosi practices can be stamped out, but they persist, and
Ms. Fiadjoe has to live in the present, not in a more hopeful
future. Pertinent to the fact that she can expect no help from
the government authorities is the following observation
contained in the State Department Report but not addressed
by the BIA: “The Government has not prosecuted any
practitioners of Trokosi, and in August 1999, a presidential
aide criticized anti-Trokosi activists for being insensitive to
indigenous cultural and ‘religious’ beliefs and practices.”
In light of Ms. Fiadjoe’s own experiences and the
documentary evidence in the record, we conclude that the
BIA’s finding that Ms. Fiadjoe failed to establish that the
government of Ghana was either unwilling or unable to
control her father’s sexual abuse is not supported by
substantial evidence8 .
IV. Conclusion
The adverse credibility determinations of the IJ and of
the BIA are not supported by substantial evidence, nor is the
BIA’s finding that Ms. Fiadjoe failed to establish that the
government of Ghana was either unwilling or unable to
control her father’s sexual abuse supported by substantial
evidence.
We will grant the petition for review and remand the
case to the BIA for further remand to a different IJ for a new
8
In light of the disposition of the case it is unnecessary to
consider Ms. Fiadjoe’s petition seeking review of the BIA’s order
denying her motion to reconsider its June 6, 2003 opinion.
59
hearing at which there may be received in evidence the
documents that accompanied Ms. Fiadjoe’s motion before the
BIA for reconsideration of its June 6, 2003 decision and
evidence, if available, of continuing Trokosi practices and
governmental attempts to eradicate them and to protect
Trokosi victims.
60
Fiadjoe v. Ashcroft, Nos. 03-1971, 04-1544
SMITH, Circuit Judge, dissenting:
While I would like to conclude otherwise, the majority’s
approach to its review of the BIA’s findings concerning
government protection in Ghana is, in my view, inconsistent
with the deferential approach we are required to take in these
cases. Accordingly, I must dissent.
Ms. Fiajdoe’s is a tragic story. She does not present the
typical claim for asylum, in which a refugee seeks protection
from her native government or from forces acting on the
government’s behalf. Instead, she recounts a history of physical
and sexual abuse suffered at the hands of her father, allegedly in
connection with her father’s activities as a traditional “Trokosi”
priest. Though the grant of asylum has traditionally been used
to protect immigrants fleeing government persecution, our laws
are sensitive to the plight of individuals such as Ms. Fiadjoe. As
the majority explains, a private incident that rises to the level of
persecution can create eligibility for asylum when it is
committed “by forces the government is either unable or
unwilling to control.” Gao v. Ashcroft, 299 F.3d 266, 272 (3d
Cir. 2002). My difficulty with this case is that, try as I might, I
cannot say - as the law requires us to say if we are to reverse the
61
BIA - that “any reasonable adjudicator would be compelled to
conclude” that the Ghanaian government is unable or unwilling
to control her father. I cannot say that here because there is
what I consider to be ample evidence in the record to support the
BIA’s conclusion that, if the government had been informed of
what Fiadjoe claims her father did, it would have been willing
and able to control him. The majority sidesteps this evidence in
favor of other information that may cast doubt on the efficacy of
Ghana’s anti-Trokosi efforts, and holds that the presence of such
evidence compels an opposite conclusion than that reached by
the BIA. It is simply not our charge to do that.9
To establish eligibility for asylum on the basis of past
persecution, an applicant must show: “(1) an incident, or
incidents, that rise to the level of persecution; (2) that is ‘on
account of’ one of the statutorily protected grounds; and (3) is
committed by the government or forces the government is either
‘unable or unwilling’ to control.” Gao v. Ashcroft, 299 F.3d
266, 272 (3d Cir. 2002) (emphasis added). Whether an
9
Shortly before oral argument the government filed a motion
indicating that Fiadjoe had left the United States and gone to Canada,
and requested that her appeal be dismissed on the basis of the fugitive
disentitlement doctrine. See Arana v. INS, 673 F.2d 75, 77 (3d Cir.
1982) (per curiam). Letter briefs filed after oral argument indicate
that, while Fiadjoe apparently remains in Canada, she informed DHS
through counsel that she has “self-deported,” and in response to this
information the government withdrew its motion to dismiss the
appeal.
62
applicant has demonstrated past persecution or a well-founded
fear of future persecution is a factual determination reviewed
under the substantial evidence standard. See id. Where an
applicant seeks asylum based on private violence, whether the
applicant’s native government is willing and able to control the
alleged persecutors is a component of the broader persecution
inquiry. Thus, we must review the BIA’s finding that Fiadjoe
failed to show that the government of Ghana was unable or
unwilling to control her father’s abuse in order to determine if
that finding is supported by substantial evidence.
In Dia v. Ashcroft, 353 F.3d 228 (3d Cir. 2003) (en
banc), we elaborated on the nature of substantial evidence
review of an asylum claim:
Thus, the question whether an agency
determination is supported by substantial
evidence is the same as the question whether a
reasonable fact finder could make such a
determination based upon the administrative
record. If a reasonable fact finder could make a
particular finding on the administrative record,
then the finding is supported by substantial
evidence. Conversely, if no reasonable fact finder
could make that finding on the administrative
record, the finding is not supported by substantial
evidence.
63
Dia, 353 F.3d at 249. We emphasized that our deference to the
agency’s findings is conditioned upon support in the record, and
we indicated that if the agency’s conclusion “is not based on a
specific, cogent reason, but instead, is based on speculation,
conjecture, or an otherwise unsupported personal opinion, we
will not uphold it because it will not have been supported by
such relevant evidence as a reasonable mind would find
adequate. In other words, it will not have been supported by
substantial evidence.”
Id. at 249-50.
The law requires applicants such as Ms. Fiadjoe to bear
the burden of proof of establishing her eligibility for asylum.
See Gao, 299 F.3d at 272; Abdille v. Ashcroft,
242 F.3d 477, 482
(3d Cir. 2001). The BIA found that Ms. Fiadjoe failed to carry
this burden with respect to a critical element of her claim,
namely, that she had experienced persecution by forces the
government of Ghana was either unwilling or unable to control.
Our task in reviewing the BIA’s finding is not to
determine whether we would have reached the same conclusion
in the first instance. To the contrary, “the substantial evidence
standard of review is extremely deferential, setting a ‘high
hurdle by permitting the reversal of factual findings only when
the record evidence would ‘compel’ a reasonable factfinder to
make a contrary determination.’” Chen v. Ashcroft, 376 F.3d
215, 223 (3d Cir. 2004). We have further explained that for a
petitioner to prevail on a challenge to the BIA’s factual findings
under the Immigration and Nationality Act (“INA”), “the
64
evidence [on the issue in question] must be so strong in [the
petitioner’s] favor that in a civil trial [the petitioner] would be
entitled to judgment on the . . . issue as a matter of law.” See
Chen, 376 F.3d at 222 (citing INS v. Elias-Zacarias,
502 U.S.
478, 481 n.1 (1992)).
Under this standard, I believe that the majority has failed
to accord proper deference to the BIA’s findings on the issue of
government protection in Ghana. In concluding that Fiadjoe had
not met her burden of proof, the BIA stated:
The respondent never sought the help of the
authorities in Ghana. The respondent claimed
that her grandmother told the police of the
respondent’s being beaten but that she declined to
tell the authorities about the ritual sexual abuse
due to shame. The respondent submitted evidence
that the government of Ghana outlawed Trokosi
practice and ritual bondage in 1998 and that a
non-governmental organization has had success in
liberating, counseling, and rehabilitating past
victims of such bondage. Therefore, the
respondent has not shown that the government of
Ghana would be unwilling or unable to protect
her.
AR 74. The majority disagrees with the BIA’s conclusions, but
65
in so doing it fails adequately to address the record evidence
supporting the BIA’s findings and places disproportionate
emphasis on anecdotal statements culled from various portions
of the record.
The majority quotes the description of Trokosi practices
contained in the State Department’s 2000 Country Report on
Human Rights Practices in Ghana, which was also part of the
record before the BIA. The paragraph immediately following
the excerpt quoted by the majority details Ghana’s anti-Trokosi
efforts:
In 1998 Parliament passed legislation that banned
the practice of Trokosi in comprehensive
legislation to protect women and children’s rights.
Human rights activists believe that the goal of
eradicating the Trokosi practice is achievable with
the new law. NGO’s such as International Needs,
and government agencies like the CHRAJ, have
been campaigning against Trokosi for several
years and are familiar with the locations of the
fetish shrines and the numbers of women and
children enslaved. Activists know the community
leaders and fetish priests and, thus, know with
whom to negotiate. The CHRAJ and
International Needs have had some success in
approaching village authorities and fetish priests
at over 316 of the major and minor shrines,
winning the release of 2,800 Trokosi slaves to
66
date and retraining them for new professions. The
organizations continue to work for additional
releases. The Government has not prosecuted any
practitioners of Trokosi and in August 1999, a
presidential aide criticized anti-Trokosi activists
for being insensitive to indigenous cultural and
“religious” beliefs and practices. A local group,
calling itself the “Troxovi Institutional Council”
(Troxovi is an alternate spelling for Trokosi)
declared that Trokosi, as defined by CHRAJ and
other human rights groups to be a form of ritual
servitude, does not exist in the country. The
group claimed that the practice of “Troxovi” does
exist but neither enslaves nor exploits anyone.
The Council also listed 23 ‘genuine Troxovi
shrines’ in Ghana, describing them as educational
institutions and as part of the “Afrikania religion.”
These claims were widely refuted by chiefs, the
press, and NGOs.
AR:343-44.
In light of this discussion, it is unclear to me how the
majority can hold that no reasonable factfinder could conclude
that the government of Ghana would be willing and able to help
Fiadjoe. The fact that the Parliament passed comprehensive
legislation to protect women and children’s rights, and that the
practice of Trokosi was banned pursuant to this legislation,
certainly provides evidence that the Ghanaian authorities
recognized the existence and nature of Trokosi and were willing
67
to take steps to combat it. The report’s statement that “human
rights organizations believe that the goal of eradicating Trokosi
is achievable with the new law” also provides support for the
BIA’s conclusion that invoking the aid of Ghanaian authorities
would not have been futile. There is no basis in the record to
believe that these human rights organizations were offering
anything less than an honest assessment of the situation, and if
as of 2000 they reasonably believed Trokosi could be eradicated,
then it is not for this Court to suggest that the BIA acted
unreasonably in giving weight to their views.
The State Department report also recounts empirical
evidence in support of the view that the Ghanaian government’s
anti-Trokosi efforts were having significant success.
Specifically, Ghana’s Commission for Human Rights and
Administrative Justice (“CHRAJ”), working with an NGO, had
secured the release of approximately 2,800 Trokosi slaves and
retrained them for new professions. According to the State
Department report, the CHRAJ is an autonomous government
commission established pursuant to the Ghanaian constitution.
Thus, contrary to the implications of the majority opinion, the
State Department report indicates that Ghana’s anti-Trokosi
efforts were being implemented by a government agency acting
in partnership with various NGOs. According to that report, this
collaborative effort relied heavily upon negotiation rather than
direct confrontation as a means of aiding the victims of Trokosi
practices. By ignoring the CHRAJ initiative, the majority
dismisses the BIA’s findings concerning Ghana’s anti-Trokosi
68
efforts, and wrongly equates the absence of criminal prosecution
with an absence of effective aid for women threatened by
Trokosi practices.
The majority also challenges the significance of the State
Department’s description of Ghana’s anti-Trokosi efforts by
quoting a portion of the report that addresses in a more general
sense the problem of violence against women in Ghana.
However, the concluding sentences of the paragraph quoted by
the majority provide further support for the BIA’s conclusion
that Fiadjoe had not shown that the government of Ghana was
unwilling or unable to protect her. The report states that 1998
legislation doubled the mandatory sentence for rape, and that in
late 1998
the police administration established a ‘women
and juvenile unit’ to handle cases involving
domestic violence, child abuse, and juvenile
offenses. Located in Accra and Kumasi, the unit
works closely with the Department of Social
Welfare, FIDA, and the Legal Aid Board. During
the year, the Accra Branch of this unit recorded
over 530 cases, including 181 defilement cases,
35 rapes, 6 cases of incest, 17 indecent assualts,
86 instances of assault and wife battery, 6
abductions, and 200 neglect cases.
69
AR:341-42. The majority does not recite this evidence,
although it was part of the record before the BIA. It reinforces
my view that under the deferential substantial evidence standard,
the record as a whole contains adequate support for the BIA’s
findings concerning the issue of government protection in
Ghana.10
The majority also argues that Fiadjoe’s own testimony
shows that the government of Ghana would have been unwilling
or unable to help Fiadjoe. I do not believe Fiadjoe’s testimony
concerning her grandmother can bear the weight the majority
places upon it. Fiadjoe’s affidavit and testimony are vague
concerning what Fiadjoe’s grandmother told the police, and the
details that were allegedly provided could have left the police
believing that Fiadjoe’s situation involved a family dispute
concerning excessive corporal punishment.
Fiajdoe’s hearing testimony regarding this issue consists
10
In assessing the BIA’s findings, the majority chastises the
BIA for failing to address a June 1996 London newspaper article
entitled “Slave of the Fetish.” This article was submitted by Fiadjoe’s
counsel during the proceedings below, and was part of the
administrative record before the BIA. However, this article predates
by several years Ghana’s anti-Trokosi efforts described in the 2000
State Department report discussed above, and it consists primarily of
ambiguous statements that shed little light on whether Fiadjoe had
met her burden of showing that the Ghanaian authorities were
unwilling or unable to protect her.
70
of the following exchange:
Q. Okay, did you ever try to go to the police yourself
to tell them what was happening to you?
A. No.
Q. Why not?
A. Because of how they were telling my
grandmother.
Judge to Ms. Fiadjoe
Q. Because of what, ma’am?
A. Because they always tell my grandmother that
he’s discipline and my grandmother, I full of
shame to tell anybody my father is sleeping with
me.
AR:251. Fiadjoe’s affidavit submitted in support of her asylum
application contains slightly more detail:
14. My grandmother told the police about these
beatings. My grandmother told me the police
only said that ‘your father is just trying to
discipline you.’
15. In 1997 my grandmother went to the police after
my father had poured boiling water on me when
I refused to take his abuse. Again, the police said
this was a father’s right to discipline his children.
71
16. My [grand]mother did not tell the police that my
father was sexually abusing me. It would shame
our family and she could not do that.
AR:317-18.
In my view, particularly in light of the record evidence of
Ghana’s anti-Trokosi efforts, the limited information contained
in Fiadjoe’s affidavit and hearing testimony cannot reasonably
be relied upon as determinative of what the Ghanaian authorities
would have done had they been informed of Fiadjoe’s father’s
Trokosi-related abuse. The majority acknowledges that the
Ghanaian authorities were never informed of “the sexual aspect
of the abuse,” but fails to acknowledge the significance of this
fact. The most that can be extracted from Fiadjoe’s affidavit
and testimony is that the local police failed to investigate when
her grandmother twice told them that Fiadjoe was being
physically abused by her father. However, Fiadjoe has not
sought asylum simply because she was a victim of child abuse.
Fiadjoe’s brief, consistent with the requirements of the INA,
argues that she was persecuted “on account of” her membership
in a particular social group, which she defines as “Ghanaian
women from the Ewe tribe in the Volta Region who have been
subjected to or face being subjected to the practice of Trokosi
and who oppose this practice.” See 8 U.S.C. § 1101(a)(42)(A).
Thus, it is specifically the sexual aspect of her father’s abuse,
combined with its ostensibly “religious” motivation, that has
permitted Fiadjoe to seek asylum as one who has suffered
persecution “on account of” a protected ground. It seems
anomalous to hold, as the majority does, that Fiadjoe’s native
government would not protect her from persecution inflicted “on
account of” her social group, when the Ghanaian government
was not informed of Fiadjoe’s membership in this social group
72
or of the nature and extent of the abuse that has given rise to her
claim for asylum.11
Notwithstanding any shortcomings in Fiadjoe’s
testimony, I am willing to assume arguendo that a reasonable
factfinder could rely on this testimony to conclude that Ms.
Fiadjoe had shown that the government of Ghana was unwilling
or unable to protect her. The majority, however, holds that a
reasonable factfinder would be compelled to take this approach.
Based on all of the record evidence discussed above, I simply
cannot agree, and thus I believe it is inappropriate to invoke
Fiadjoe’s testimony as the basis for displacing the BIA’s
judgment with our own.12
Ms. Fiadjoe’s account rightfully evokes our sympathies,
11
I share the majority’s concern with what appears from the
transcript to have been the unnecessarily hostile demeanor of the IJ
during Ms. Fiadjoe’s hearing. However, the record as a whole
supports the BIA’s decision to accord limited weight to Fiadjoe’s
account concerning the interaction between her grandmother and the
Ghanaian police. Ms. Fiadjoe’s affidavit, prepared in advance of the
hearing with the assistance of counsel, contains little detail
concerning the specific information given by her grandmother to the
Ghanaian police, and the affidavit acknowledges that the police were
never informed of the alleged ritual sexual abuse that is the basis of
Fiadjoe’s claim for asylum.
12
The majority also recounts Fiadjoe’s testimony concerning
her unsuccessful efforts to relocate away from her father, and asserts
that “Ms. Fiadjoe’s own experiences demonstrate that where a
Trokosi slave is involved the police will not intervene.” Maj. Op. 52.
This statement on its face seems to me inconsistent with the
majority’s own acknowledgment that the Ghanaian authorities were
never informed that Fiadjoe was a “Trokosi slave.”
73
and I would be less concerned with the majority’s approach if
we had the luxury of deciding each case based solely on our own
assessment of the facts underlying a petitioner’s claim.
However, that is not an approach we are permitted to take as an
appellate court reviewing agency action, and I am concerned by
the implications of the majority’s approach for future
immigration appeals. Our Court has little precedential authority
evaluating asylum claims based upon alleged private persecution
that a foreign government is purportedly unwilling or unable to
control. I fear the majority’s approach sets us down the wrong
path for reviewing these difficult issues. By emphasizing only
what it finds in the record to cast doubt on the effectiveness of
Ghana’s anti-Trokosi efforts, the majority overlooks or
discounts the record evidence to the contrary. This approach
risks a deluge of claims from applicants who have faced private
violence and who can argue that a lack of resources constrains
the effectiveness of law enforcement efforts in their native
countries. It also raises the troubling specter of frequent judicial
pronouncements condemning the law enforcement practices of
foreign governments, an outcome our highly deferential standard
of review is designed to avoid.
In my view, the majority’s approach is effectively one of
de novo review. The law forbids us from substituting our
judgment for that of the BIA, and it provides no exception for
cases where the BIA has had to address whether a foreign
government would be willing and able to protect one of its own
citizens.
I respectfully dissent.
74
75
