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.
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 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 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 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.
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.
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.
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 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.
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 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.
When the BIA and the IJ both issue decisions in a case, we review both decisions on appeal.
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.
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."
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.
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
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
Further, even if the IJ had correctly applied the test, the IJ improperly relied on "isolated snippets of [the] record,"
Moreover, drawing a conclusion that the Eritrean government does not desire to persecute members of Haile's family
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
"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.
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 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.
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.
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.
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.
