Filed: Dec. 02, 2011
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-1920 EZGIHIBU HAILE, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Argued: September 22, 2011 Decided: December 2, 2011 Before MOTZ, GREGORY, and SHEDD, Circuit Judges. Petition for review granted; vacated in part and remanded by unpublished opinion. Judge Gregory wrote the opinion, in which Judge Motz and Judge Shedd joined. ARGUED:
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-1920 EZGIHIBU HAILE, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Argued: September 22, 2011 Decided: December 2, 2011 Before MOTZ, GREGORY, and SHEDD, Circuit Judges. Petition for review granted; vacated in part and remanded by unpublished opinion. Judge Gregory wrote the opinion, in which Judge Motz and Judge Shedd joined. ARGUED: ..
More
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1920
EZGIHIBU HAILE,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: September 22, 2011 Decided: December 2, 2011
Before MOTZ, GREGORY, and SHEDD, Circuit Judges.
Petition for review granted; vacated in part and remanded by
unpublished opinion. Judge Gregory wrote the opinion, in which
Judge Motz and Judge Shedd joined.
ARGUED: David Goren, LAW OFFICE OF DAVID GOREN, Silver Spring,
Maryland, for Petitioner. Brianne Whelan Cohen, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON
BRIEF: Tony West, Assistant Attorney General, Civil Division,
William C. Peachey, Assistant Director, Office of Immigration
Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
GREGORY, Circuit Judge:
Ezgihibu Haile, a native and citizen of Eritrea, appeals
the denial of her application for asylum by the Board of
Immigration Appeals (“BIA”). Haile’s primary contentions, as
detailed in her application, personal statement, testimony, and
corroborative evidence, are that she has suffered past
persecution in Eritrea because of her father’s opposition to the
ruling political party and, independently, that she has a well-
founded fear of persecution based on her political opinion and
membership in a particular social group. As explained below, we
grant the petition for review, vacate the BIA’s order in part,
and remand for further proceedings.
I.
During her initial evidentiary hearing before the
immigration judge (“IJ”) on January 13, 2005, Haile testified
with the assistance of an interpreter to the following: during
the time that Haile was in Eritrea, her father was an active
member of an Eritrean opposition party, the People’s Democratic
Front for the Liberation of Eritrea (“SAGEM”). SAGEM opposes
the ruling Eritrean People’s Liberation Front (“EPLF”). Haile
did not know her father was a member of SAGEM until he was
arrested and detained by the Eritrean government in August of
2000. Specifically, on August 16, 2000, three armed Eritrean
2
government police officers entered Haile’s home at midnight and
violently removed her father. He has not been seen or heard
from since. Shortly following her father’s arrest, government
agents returned to her family home and took Haile and her mother
into custody. Haile was verbally abused, threatened, slapped
ten times in the face, and interrogated about SAGEM and her
father. Haile was told she and her family were traitors and
that her father was a bad man and a member of a useless
organization. While Haile and her mother were ultimately
released following 24 hours of interrogation, they were ordered
to bring her father’s documents and money to the police station
within two days or be killed. They were also forced to sign a
document stating that they would not leave the city of Asmara
and would report to the government whenever ordered.
Upon their release, Haile and her mother made arrangements
to flee the country to avoid persecution. They left the city
and within a few days arrived in Sudan. However, SAGEM
representatives in Sudan advised Haile and her mother that Sudan
was not safe because government officials would soon come
looking and either kidnap or kill them. From Sudan, Haile fled
to Kenya but her mother was forced to stay behind because there
was not enough money for both Haile and her mother to go, and
Haile, as the younger of the two, was a more prominent target
for government agents. Haile left and has not seen her mother
3
since. Haile traveled to Kenya, then to Italy, and finally to
the United States using another person’s Netherlands passport to
gain admission under the Visa Waiver Pilot Program.
When she arrived in the United States, Haile reached out to
SAGEM for support and joined a local branch because of her
father’s arrest and because she came to believe that the
Eritrean government was not serving the people. Since joining
in 2001, Haile has actively and openly participated in SAGEM by
distributing flyers, donating money, attending monthly meetings,
and protesting in public demonstrations despite the Eritrean
government sending observers to document the participants.
Haile spoke to a friend who told her that she saw Haile on
Eritrean television participating in an anti-government
demonstration and warned her not to return to Eritrea. Since
Haile left Eritrea, she has come to learn that the government
has taken her father’s property, sealed off her family home, and
auctioned off her father’s store. Haile fears she will be
killed by the Eritrean government for her political activities
and her relationship to her father if she were to return to
Eritrea.
Haile corroborated her claims with testimony from Tsegal
Ghebrihiwot Sedhatu, a U.S. citizen and a native of Eritrea.
Sedhatu is a leader of SAGEM. He knew Haile’s father when he
lived in Eritrea and was told by another SAGEM leader that
4
Haile’s father was arrested by the government. Sedhatu met
Haile at a SAGEM meeting in Washington, D.C., and has since
observed Haile distributing party literature and participating
in at least one demonstration. Sedhatu is aware that the
Eritrean government has agents in the United States who
videotape the demonstrations. He believes Haile would be
arrested if she returned to Eritrea.
In addition to her testimony and Sedhatu’s, Haile provided
additional documentary evidence in support of her claim that she
is politically active. She submitted a SAGEM membership card
with her name and several photographs showing her participating
in anti-Eritrean government demonstrations in the United States.
She also submitted an open letter from Amnesty International to
the Maltese government, dated June 7, 2004, noting that Malta
returned Eritrean refugees and asylum seekers to Eritrea in
2002, and that some have not been seen since. According to the
letter, the returnees were detained upon arrival and sent to a
military detention center. Some prisoners were released, but
those remaining were kept in detention and tortured. Amnesty
International indicated that many asylum seekers returning to
Eritrea are not safe, including suspected opponents or critics
of the government, supporters of exile opposition groups, and
conscientious objectors to military service.
5
A.
On January 13, 2005, the IJ denied Haile’s asylum
application, contending that Haile’s one-day detention by
Eritrean police did not amount to persecution and that she had
not shown a well-founded fear of persecution on account of her
political opinion (“IJ Decision I”). The IJ did not discuss
Haile’s social group claim apart from stating that “[m]embership
in SAGEM is not a social group.” The IJ denied Haile relief for
failure to meet her burden of proof because the IJ described the
testimony as “non-detailed, non-specific and meager.” The IJ
found it implausible that Haile was a politically active SAGEM
member because (1) Haile could not state that the acryonym
“SAGEM” stands for “the People’s Democratic Front for the
Liberation of Eritrea”; (2) she was non-detailed when asked what
she meant by the word “masquerades” on a sign she held at a
demonstration; and (3) her testimony lacked detail concerning
the group’s reasons for demonstrating when asked about a
specific demonstration. The IJ also noted that an alien whose
first sign of political opposition takes place after arriving in
the United States is viewed with a high degree of skepticism and
that Haile’s testimony that a friend told her she saw her on
Eritrean television was not corroborated in any way. The IJ
gave no weight to Sedhatu’s testimony. It also gave little or
no weight to the letter from Amnesty International.
6
B.
On May 8, 2006, the BIA, in one sentence, affirmed without
opinion IJ Decision I. Haile filed a petition for review that
resulted in a remand from this Court because the IJ never
discussed Haile’s social group claim. On remand from the Fourth
Circuit and the BIA, the IJ was instructed to adjudicate whether
Haile possessed a well-founded fear of persecution as a member
of a particular social group. Haile v. Gonzales, No. 06-1650
(4th Cir. Mar. 23, 2007).
The IJ conducted a second evidentiary hearing on April 14,
2008, at which Haile submitted additional evidence to support
her petition for asylum, including a letter from a family
friend, Azeb Woldearegay, indicating that the situation in
Eritrea is dangerous for family members of persons arrested by
the government, that Haile’s father’s shop was still shut down
and sealed by authorities, and that if Haile were there now she
might encounter the same fate as her father. Haile also
submitted an additional photograph of herself at a demonstration
and reports from the U.S. State Department, Amnesty
International, and Freedom House indicating the harsh treatment
Eritrea exacts toward individuals suspected of opposing the
government or having ties to political dissidents. She further
testified that the Eritrean government believes she has some
information to offer about other dissidents and that she fears
7
returning to Eritrea because of own her political activities and
her father’s.
On April 14, 2008, the IJ again denied relief, (“IJ
Decision II”), finding that Haile “is a member of a particular
social group; that is, her family, her father. But [she] has
failed to establish a nexus between that membership and a
protected ground.” According to the IJ, Haile was detained in
order to secure information about her father’s activities and
not her own. The IJ based this on the fact that Haile was not
forced to confess involvement in SAGEM, and it did not appear
that authorities believed she was involved in SAGEM. The IJ
also speculated that because the Eritrean government had the
opportunity to keep Haile and her mother detained yet did not,
this implies the government does not intend to persecute members
of her father’s family.
The IJ gave little weight to the letter submitted by Haile
from her friend because it was unsworn. IJ Decision II also
made no mention of Sedhatu’s testimony or the other documentary
evidence including the reports from the State Department,
Amnesty International, and Freedom House.
C.
On April 29, 2008, Haile timely filed a notice of appeal of
the IJ’s denial of her claim for asylum. In addition to review
of the IJ’s denial of her social membership claim, Haile
8
requested review of the imputed-political opinion claim because
the BIA had never expressed an opinion on that claim in its one-
sentence affirmance of IJ Decision I.
On July 14, 2010, the BIA dismissed the appeal, finding
that Haile failed to show she was entitled to asylum. The BIA
agreed with the IJ that Haile did not establish she was
subjected to past persecution, and she did not show she has a
well-founded fear of persecution on account of her membership in
a particular social group or her political opinion. The BIA
credited the IJ’s speculation that because the government did
not make Haile or her mother confess to being SAGEM members and
released them after interrogation, the government was not
motivated by a belief that Haile was a SAGEM member or by a
desire to persecute family members of Haile’s father. A
dissenting opinion was issued, stating the dissenting judge
“would have found Haile was a credible witness and established a
well-founded fear of persecution on account of her political
opinion and her membership in a particular social group, i.e.,
her family, if returned to Eritrea.” Haile timely filed a
petition for review.
II.
When the BIA and the IJ both issue decisions in a case, we
review both decisions on appeal. Camara v. Ashcroft, 378 F.3d
9
361, 366 (4th Cir. 2004). In so doing, we apply the substantial
evidence standard, affirming the BIA’s determinations unless
“evidence presented was so compelling that no reasonable
factfinder could fail to find eligibility for asylum.” Kourouma
v. Holder,
588 F.3d 234, 240 (4th Cir. 2009) (internal citations
omitted). In other words, we are bound to uphold the BIA’s
determinations unless they are manifestly contrary to the law
and an abuse of discretion. See Lizama v. Holder,
629 F.3d 440,
444 (4th Cir. 2011). “The BIA may be held to have abused its
discretion if it failed to offer a reasoned explanation for its
decision, or if it distorted or disregarded important aspects of
the applicant’s claim.” Tassi v. Holder, No. 10-2194, slip op.
at 13 (4th Cir. Nov. 7, 2011). And while a credibility
determination is considered a factual determination,
Kourouma,
588 F.3d at 240, the deference accorded to such findings is not
absolute, Jian Tao Lin v. Holder,
611 F.3d 228, 235 (4th Cir.
2010). An IJ must offer specific, cogent reasons for rejecting
the applicant’s testimony as incredible. See
Kourouma, 588 F.3d
at 241. Further, even if the IJ determines the applicant’s
testimony is incredible, it may not do so without evaluating the
applicant’s independent evidence. Jian Tao
Lin, 611 F.3d at
236. This Court will remand where “it is likely that the IJ
would have reached a different outcome if he had given due
consideration to the independent evidence that he [improperly]
10
discounted.” Anim v. Mukasey, 535 F.3d 243, 261 (4th Cir.
2008). With the foregoing principles in mind, we evaluate each
of Haile’s claims in turn.
III.
Haile argues that she has established eligibility for
asylum through past persecution and, independently, through a
well-founded fear of future persecution based on her political
opinion and her membership in a particular social group.
Under the Immigration and Nationality Act (“INA”), an alien
applying for asylum has the burden of showing either past
persecution or a well-founded fear of future persecution “on
account of race, religion, nationality, membership in a
particular social group, or political opinion.” 8 U.S.C.
§ 1101(a)(42)(A). If the applicant is able to demonstrate past
persecution, she is “presumed to have a well-founded fear of
persecution on the basis of the original claim.” 8 C.F.R.
§ 208.13(b)(1).
Persecution is an extreme concept, and not every incident
of mistreatment or harassment constitutes persecution within the
meaning of the INA. Qui Hua Li v. Gonzales, 405 F.3d 171, 177-
78 (4th Cir. 2006). Courts “have been reluctant to categorize
detentions unaccompanied by severe physical abuse or torture as
persecution.”
Id. at 177. Because we cannot say Haile’s
11
evidence of past persecution was so compelling that no
reasonable fact-finder could fail to afford Haile the
presumption of a well-founded fear of persecution, we do not
take issue with BIA’s denial of this presumption.
Independent of past persecution, an applicant can still
establish a well-founded fear of future persecution by
“provid[ing] both candid, credible and sincere testimony
demonstrating a genuine fear of persecution as well as specific,
concrete facts that a reasonable person in like circumstances
would fear persecution.” Kourouma, 588 F.3d at 240 (internal
citations omitted). Haile claims she has a well-founded fear of
future persecution based on her membership in a particular
social group and her political opinion.
A.
Membership in a particular social group is a protected
ground under the INA. 8 U.S.C. § 1101(a)(42)(A). Haile defines
her membership in a particular social group as a member of the
nuclear family of her father, who was a member of SAGEM, and was
arrested and disappeared for his political activities.
It is well established in the Fourth Circuit and sister
circuits that “family” qualifies as a “particular social group”
within the meaning of the INA. Crespin-Valladares v. Holder,
632 F.3d 117, 125 (4th Cir. 2011) (“[T]he family provides a
prototypical example of a ‘particular social group.’”) (internal
12
citations omitted). The IJ agreed that Haile “is a member of a
particular social group; that is, her family, her father.”
Once it is established that an applicant is a member of a
particular social group, a separate question of causation must
be determined to support eligibility for asylum. An applicant
must show she has a well-founded fear of persecution based on
h[er] membership in that group, an inquiry that contains both
subjective and objective components. Kourouma, 588 F.3d at 240.
In this case, the IJ denied Haile’s social membership
claim, and the BIA affirmed the denial. On remand from this
Court and the BIA, the IJ was specifically instructed to
adjudicate whether Haile possessed a well-founded fear of
persecution as a member of a particular social group. It did
not do so. The IJ held that Haile failed to establish a nexus
between membership and a protected ground. This is an imprecise
formulation of the well-founded fear test, and we believe this
imprecision resulted in an incorrect application of the test.
The proper inquiry is whether there is a nexus between fear of
persecution (not membership, as the IJ stated) and a protected
ground (here, family membership). The IJ could not properly
evaluate whether Haile possessed a well-founded fear of
persecution as a member of a particular social group where it
misapplied the test and failed to examine whether there is a
nexus between Haile’s fear of persecution and Haile’s membership
13
in her family. The BIA erred in failing to recognize the IJ’s
glaring legal error concerning the heart of Haile’s claim,
rendering the BIA order manifestly contrary to law and an abuse
of discretion.
Further, even if the IJ had correctly applied the test, the
IJ improperly relied on “isolated snippets of [the] record,”
Baharon v. Holder, 588 F.3d 228, 233 (4th Cir. 2009), to support
its factual finding that the Eritrean government was not
motivated by a desire to persecute family members of Haile’s
father. The IJ based its denial of Haile’s family-membership
claim on the sole fact that neither Haile nor her mother were
involved in SAGEM in Eritrea, and the government released them
after the interrogation when it had the opportunity to keep
Haile and her mother detained. While it is true that Haile and
her mother were released within 24 hours, the government’s
interest in Haile and her mother did not end there. Haile
testified that she and her mother were ordered to bring all of
her father’s documents and money back to the police station
within two days or be killed and were forced to sign a document
indicating they would not leave Asmara and would report to the
government whenever ordered. The government also accused Haile
and her parents of belonging to a family of betrayers bent on
dismantling the EPLF and the new nation. An IJ is not entitled,
as it did here, to “base [a] decision on only isolated snippets
14
of [the] record while disregarding the rest.” Baharon, 588 F.3d
at 233.
Moreover, drawing a conclusion that the Eritrean government
does not desire to persecute members of Haile’s family today,
improperly relies on “speculation, conjecture or an otherwise
unsupported personal opinion.” Jian Tao Lin, 611 F.3d at 237.
Even if one were to accept it was not the government’s
motivation ten years ago to persecute family members of Haile’s
father, 1 this does not support a finding that it would not be the
Eritrean government’s desire today and that Haile has no good
reason to fear future persecution if returned to Eretria today.
Indeed, the evidence presented overwhelmingly supports the
conclusion that she does. And while it is not our job to
reweigh the evidence before the IJ, “[i]t is, however, our
responsibility to ensure that unrebutted, legally significant
evidence is not arbitrarily ignored by the factfinder.”
Baharon, 588 F.3d at 233.
1
This is a difficult conclusion to accept. The Eritrean
government was likely motivated by multiple desires when it
arrested and detained Haile and her mother -- to find out
information regarding the father’s contacts, to obtain documents
and money belonging to him, and to persecute family members of
Haile’s father. The fact that Haile and her mother were
released with orders to return to the police station in two days
with documents and money only implies that the government was
acting in a commonsense sequence if it wanted to fulfill all of
those desires.
15
In view of the fact that Haile and her family are certainly
known to the Eritrean government, that the Eritrean government
has already accused Haile of belonging to a “family of
betrayers” and of being involved in the Eritrean opposition,
that she failed to return to the police station with documents
and money in violation of direct orders, that she fled Eritrea
after signing a document stating she would stay and report as
required, that she has since openly engaged in opposition
activities against the Eritrean government that are routinely
documented and observed by Eritrean government agents, and that
the harsh treatment Eritrea exacts toward individuals suspected
of opposing the government or having ties to political
dissidents is undisputed, it does not take much imagination to
find that a reasonable person in Haile’s circumstances would
fear persecution on account of her membership in her family if
returned to Eritrea.
In addition to misapplying the well-founded fear test,
emphasizing portions of the record to support its factual
findings, and engaging in speculation and assumption, the IJ
further erred in failing to consider Haile’s corroborating
evidence. In addition to her testimony, Haile submitted
documentary evidence corroborating her reasonable fear of
persecution based on her family membership, including the
current Country Report on Human Rights Practices for Eritrea,
16
the Amnesty International 2007 Annual Report for Eritrea, and
The Freedom House Countries at the Crossroads 2007 country
report for Eritrea, indicating the harsh treatment Eritrea
exacts toward individuals suspected of opposing the government
or having ties to political dissidents. Neither the BIA nor the
IJ gave any weight to this evidence. The failure to consider
the reports is an error; “the immigration judge cannot reject
documentary evidence without specific, cogent reasons why the
documents are not credible.” Kourouma, 588 F.3d at 241.
“Without [the IJ’s] erroneous perception of the record, it
is far from clear that the [IJ] would have” made the inferences
and conclusions that it made. Jian Tao Lin, 611 F.3d at 238.
Accordingly, we grant Haile’s petition for review of her social
group claim and remand.
B.
Our scrutiny of the IJ’s ruling with regard to Haile’s
political opinion claim begins with some of Haile’s most crucial
evidence, Tsegal Ghebrihiwot Sedhatu’s corroborating testimony.
Of significance, Sedhatu’s testimony pertains directly to one of
the IJ’s primary credibility findings against Haile. Haile
testified that she is a politically active member of SAGEM, and
she submitted a membership card and photographs to support her
claim that she is politically active. Sedhatu, a leader of
SAGEM, corroborated Haile’s claim. Nevertheless, the IJ found
17
it “implausible” that Haile was a SAGEM member and active
politically because she was unable to articulate what the
acronym SAGEM stands for in English and because her testimony
lacked detail concerning the group’s reasons for demonstrating.
We are skeptical of the IJ’s adverse credibility finding
based on an applicant’s inability to articulate what an acronym
stands for in her non-native language. 2 Nonetheless, even if an
IJ determines that the applicant’s testimony is incredible, “he
must nevertheless evaluate the applicant’s independent
evidence.” Jian Tao Lin v. Holder, 611 F.3d 228, 236 (4th Cir.
2010). The IJ failed to do so. And, as we have previously
observed, a “letter from [a] party leader” on behalf of a party
member seeking asylum can corroborate the applicant’s claims.
See Camara v. Ashcroft,
378 F.3d 361, 369 (4th Cir. 2004).
Sedhatu provided even more as a live in-court witness, lending
substantial credence to Haile’s claim. It was erroneous, then,
for the IJ to fail to provide any specific, cogent reason for
2
This is especially troubling here where “S-A-G-E-M”
translates to “the People’s Democratic Front for the Liberation
of Eritrea” and despite her inability to spell out those
specific words, Haile stated she could explain what the
organization does. Specifically, Haile testified that SAGEM is
“[op]position to the government in power”, its goals are to have
“better administration” in the government of Eritrea, and she
joined because of the sufferings her family experienced and
because “the government of Eritrea is not one that would be able
to serve Eritrean people.”
18
disregarding Sedhatu’s testimony, particularly when the IJ did
not question Sedhatu’s credibility.
Further, even if the IJ had properly rejected both Haile’s
and Sedhatu’s testimony as incredible, it erroneously failed to
consider whether the Eritrean government would impute a
political opinion to Haile. This is a second misapplication of
the well-founded fear standard in the IJ’s analysis of Haile’s
claims. It is well established that when deciding whether an
applicant has a well-founded fear of persecution on account of
political opinion, one must look at the applicant from the
perspective of the persecutor. See M.A. v. INS, 899 F.2d 304,
326-27 (4th Cir. 1990). Neither the IJ nor the BIA considered
whether the Eritrean government would impute a political opinion
to Haile even if evidence were to support the finding that Haile
was not sincere.
IV.
In sum, the IJ and the BIA committed multiple legal and
factual errors. In the first category, the IJ committed legal
error when it misapplied the well-founded fear standard as to
both Haile’s social group and political opinion claims and when
it failed to consider corroborating evidence in reaching the
conclusion that Haile’s testimony was incredible. An IJ’s
errors of law necessarily constitute an abuse of discretion. See
19
Menghesha v. Gonzales, 450 F.3d 142, 147 (4th Cir. 2006). In
the second category, several of the IJ’s factual findings were
not supported by substantial evidence, but by distortion of the
record, speculation, and assumption. For its part, the BIA
erred in failing to recognize the IJ’s errors concerning
important aspects of the law and Haile’s claims, rendering the
BIA order contrary to law and an abuse of discretion. Tassi v.
Holder, No. 10-2194, slip op. at 23 (4th Cir. Nov. 7, 2011).
V.
Pursuant to the foregoing, we grant Haile’s petition for
review, vacate the BIA order in part, and remand for further
proceedings as may be appropriate.
PETITION FOR REVIEW GRANTED;
VACATED IN PART AND REMANDED
20
