Zeru v. Gonzales , 503 F.3d 59 ( 2007 )

United States Court of Appeals
For the First Circuit
Nos. 06-1399, 06-2345
MINYA K. ZERU and RUSSOM B. GHEBRAI,
Petitioners,
v.
ALBERTO F. GONZALES,
Attorney General of the United States,
Respondent.
PETITIONS FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Torruella and Lynch, Circuit Judges.
Howard A. Silverman and Ross, Silverman & Levy LLP on brief
for petitioners.
Jeanette Kain, Harvey Kaplan, and Kaplan, O'Sullivan &
Friedman on brief, for Advocates for Survivors of Torture and
Trauma et al., amici curiae.
Eric W. Marsteller, Attorney, Peter D. Keisler, Assistant
Attorney General, and M. Jocelyn Lopez Wright, Assistant Director,
U.S. Department of Justice, on brief for respondent.
September 19, 2007
LYNCH, Circuit Judge. Petitioners Minya Zeru and her
husband, Russom Ghebrai, both natives and citizens of Eritrea,
applied for asylum on the basis of past persecution and a fear of
future persecution. The petitioners premised their application on
government harassment of Zeru due to her membership in an
organization that advocated Eritrean independence when that country
belonged to Ethiopia; the organization now opposes the incumbent
Eritrean government. Following hearings conducted over the course
of almost five years, an Immigration Judge (IJ) found petitioners'
testimony to be not credible, that they had not established past
persecution, and that, in any event, there was no basis for a claim
of future persecution. The IJ thus denied the asylum application.
The Board of Immigration Appeals (BIA) affirmed in a per curiam
order.
Zeru and Ghebrai moved to reopen by challenging the
credibility determination and alleging ineffective assistance of
counsel during the asylum appeal to the BIA. The BIA denied the
motion.
Zeru and Ghebrai petition for review of both the denial
of asylum and the denial of the motion to reopen. The petition is
supported by an amicus brief on behalf of various groups concerned
with the rights of refugees and torture victims. We affirm both of
the BIA orders and deny the petitions for review.
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I.
A. Denial of Claims for Relief
Zeru arrived in the United States on December 20, 1994.
Her non-immigrant business visa allowed her to remain in the United
States until July 20, 1995. In October 1995, she filed for asylum
and for withholding of removal and was interviewed by an asylum
officer. Zeru's case was transferred to the Immigration Court. In
February 1998, both Zeru and Ghebrai, who had overstayed his visa
as well, received Notices to Appear charging them with
removability. Zeru and Ghebrai conceded removability, but both
sought asylum, withholding of removal, voluntary departure, and
relief under the Convention Against Torture (CAT) based on Zeru's
assertions of political persecution.
An IJ heard testimony from Zeru and Ghebrai on five
occasions between January 20, 1999, and March 21, 2002.1 In those
initial hearings before the original IJ, Zeru testified to the
following facts. She was born in 1968 in Massawa, then a part of
Ethiopia. From the age of fifteen, Zeru began pamphleteering and
engaging in fundraising activities on behalf of the Eritrean
Liberation Front-Revolutionary Council (ELF-RC), a political group
devoted to Eritrean independence and the establishment of a multi-
1
The IJ continued the first hearing, in which he heard
testimony from Zeru, due to concerns about the quality of the
interpreter. Zeru began her testimony anew, with a different
interpreter, at the next hearing on August 27, 1999.
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party democratic system of government. Zeru kept her political
activities secret from her family, fearing retribution from various
political opponents. One rival separatist group in particular, the
Eritrean Peoples' Liberation Front (EPLF), opposed the ELF-RC's
agenda in favor of single-party rule.
Zeru testified that she was arrested in 1987 by Ethiopian
soldiers acting on a tip from the EPLF, and endured a six-month
period of imprisonment ending on January 27, 1988. She testified
that she was raped, and that she was beaten numerous times by her
jailors. Following her release, Zeru spent six months in
outpatient treatment for depression in Ethiopia.
Within a year of her release from imprisonment, Zeru
resumed fundraising for the ELF-RC. By that time, she had met
Ghebrai, a physician who worked in a state-run hospital. Zeru
testified that she did not tell Ghebrai about her political
activities or her prior imprisonment. Zeru and Ghebrai testified
that they were married in January 1990.
The EPLF defeated the Ethiopian military in 1991 and took
power in Eritrea. Zeru testified that Eritrean security forces
(according to Zeru, effectively the same organization as the former
EPLF) began harassing her in 1993, following a failed coup attempt.
On two occasions, security officers detained Zeru and interrogated
her in security forces offices near her import business in Asmara.
Then, in September 1994, Eritrean officers detained Zeru for a ten-
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hour interrogation. According to testimony that Zeru gave in
August 1999, one of her interrogators held a gun to her head and
threatened to kill her. Zeru testified that she had "never felt
worse" than during that encounter.
After the September 1994 incident, Zeru sought the advice
of a friend who worked as a secretary with the Eritrean security
forces. In November, the friend warned her that her name had
appeared on a list of ELF-RC members, and that she was in grave
danger. Leaving the country, her friend said, was her "only
option." At that point, Zeru told Ghebrai about her political
activities and her history of harassment by government officials.
Zeru testified that she obtained a visa and passport through her
secretary friend and left Eritrea. This was more than six years
after her 1987-88 imprisonment. Zeru arrived in Boston in December
1994 and resided with a cousin in Portland, Maine. She was eight
months pregnant with her second child at the time.
Zeru testified that she did not contact her family after
leaving Eritrea, and that she had not been in communication with
them until recently. Nor did Zeru have any contact with Ghebrai,
but communicated with him in occasional messages conveyed through
a relative. Ghebrai entered the United States in March of 1996, on
a short-term visa to study medicine in Los Angeles, but initially
had no contact with Zeru. Ghebrai did not join Zeru in Maine until
completing six months of medical training.
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A new IJ was assigned to petitioners' case in 2003. He
reviewed the record, including petitioners' previous testimony, and
held a full day of hearings on November 26, 2003. Zeru and Ghebrai
reiterated their prior testimony. Zeru stated during direct
evidence that she had been raped once, at the start of her
imprisonment in 1987. Later, following cross examination and in
response to questioning by the IJ, Zeru said there were two
instances of rape, the second just before her release.
Petitioners also presented an affidavit and testimony
from a fact witness named Efrem Weldemichael. Weldemichael, a
native of Eritrea and a United States citizen, testified that he
was an ELF-RC executive committee member in the United States.
Weldemichael testified that he knew Zeru as an ELF-RC member when
they were both in Ethiopia during the mid-1980s; he also testified
that he heard reports from other ELF-RC members in 1987 or 1988
that Zeru was imprisoned by the Ethiopian government.
The IJ also heard from Dr. Melissa Wattenberg, a clinical
psychologist specializing in Post-Traumatic Stress Disorder (PTSD),
whom petitioners presented as an expert witness. Wattenberg was
not a treating psychologist and did not provide therapeutic
services to Zeru. Rather, at the request of Zeru's counsel, she
interviewed Zeru about her experiences during two meetings in
October and November of 1998, almost four years after Zeru entered
the country, and produced a detailed Assessment Report dated
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December 1999. That report summarized Zeru's oral statement of her
own history and concluded that "Ms. Zeru meets criterion for
current moderate PTSD, and moderate depression." The report also
opined that Zeru "is a sincere and reliable reporter of her own
experience." Zeru told Wattenberg that she had been raped three
times, which differed from her hearing testimony.
Zeru's attorney sought to use Wattenberg's testimony to
establish the contents of her report and to assess Zeru's
credibility. The IJ admitted the report into evidence and
indicated that he need not hear testimony duplicative of the
report's contents. Zeru's counsel stated that she had no other
questions for Wattenberg, and rested on the contents of the report.
The IJ also reviewed petitioners' documentary evidence
during the November 26, 2003, hearing. The hearing opened with the
IJ pointing out that Ghebrai failed to bring his original passport,
including the relevant visa page, to the hearing. Petitioners
presented the IJ with a letter they had written to the hospital in
Eritrea where Zeru had allegedly received treatment following her
1987-88 incarceration, but they were unable to produce the hospital
records requested in the letter. Zeru also produced an ELF-RC
identification card issued at Zeru's request from the
organization's office in Bonn, Germany, in 1998. Zeru testified
that she did not carry such a card in Eritrea, but that she
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obtained it because she "was asked to produce this to prove my
membership."
Zeru also entered into evidence an official letter
signifying her release from the prison where she was held in
Ethiopia. Zeru testified that she possessed the letter since 1995.
Zeru's attorney explained that the document could not be verified
by the United States Embassy in Addis Ababa because petitioners had
sent a copy instead of the original document to the embassy.
Finally, petitioners submitted their marriage
certificate. They sent the certificate for verification to the
United States Embassy in Asmara, but the embassy responded that
Zeru's date of birth as listed on the certificate conflicted with
the date recorded in Asmara municipal records. In addition,
certain information on the certificate, including the bride's date
of birth and the date of the marriage contract, had been covered
with white-out and typed over. The IJ admitted all of the
documents into evidence, noting that he would "give them what
weight I deem is appropriate."
On December 29, 2003, the IJ denied the asylum
application and ordered petitioners' removal. The IJ based his
decision on adverse credibility findings for Zeru and Ghebrai, a
lack of corroborating evidence requested by IJs during the
proceedings, and the submission of apparently fraudulent documents.
We describe some, but not all, of the IJ's findings. The IJ gave
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a number of reasons for his credibility determinations. Among
them, he pointed out that Zeru claimed on different occasions to
have been raped once, twice, or three times. The IJ noted that
even if he was willing to ignore the contradiction in Zeru's
testimony between whether she was raped once or twice during her
six-month detention, he was still concerned that Zeru had told
Wattenberg that she was raped three times. It was the
inconsistency between her testimony to the IJ and her report to
Wattenberg that the IJ found material and relevant. The IJ stated
that "it would not be unusual for a victim of trauma to confuse
dates or sequences of events, but it would be very unusual . . . to
simply forget that an event occurred." The IJ recited numerous
other inconsistencies in petitioners' testimony relating to their
backgrounds, their marriage, their experiences in Eritrea, and
their work histories.
The IJ noted that Zeru had been asked to produce specific
documents to corroborate her claim and failed to do so. For
example, the IJ noted that she had testified that her uncle was
arrested in 1993 for involvement in a coup attempt and that the
arrest was very well publicized. She was directed at a hearing on
August 27, 1999, to obtain news reports or other information to
substantiate the arrest. Yet at the hearing on November 26, 2003,
she neither produced the documents nor had an explanation for her
failure to do so.
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In addition, the documents petitioners did submit
contained inconsistencies and evident alterations detracting from
petitioners' claims. The IJ recounted the bases for his findings
that the prison release letter,2 the marriage certificate3 and other
documentary evidence offered by petitioners were fraudulent.
The IJ further observed that petitioners' demeanor during
the November 26, 2003, hearing belied their believability. The IJ
not only found Ghebrai to be wholly incredible, but also that he
had given fraudulent testimony under oath. Indeed, the IJ found
that he doubted the testimony of both petitioners even as to their
identities and whether they were husband and wife.
The IJ also made an adverse credibility finding as to
Weldemichael. The IJ pointed out that in his affidavit,
Weldemichael stated that he first met Zeru in Ethiopia in 1983 and
saw her "a couple of time[s]" in that context. At the hearing,
however, Weldemichael insisted that he first met Zeru in 1986, and
only met her once in Ethiopia. The IJ also found it incredible
2
For example, the IJ found it telling that though Zeru
said she had the letter in her possession since as early as 1995,
she did not present it to the asylum officer at her interview. He
found the document most likely had been recently fabricated to
support her testimony.
3
The IJ suspected that the certificate was fraudulent
because of the unexplained presence of white-out on the document,
the discrepancy regarding Zeru's purported date of birth between
the certificate and Asmara municipal records, and the fact that the
United States Embassy could not determine whether the certificate
was genuine. The IJ also pointed out that petitioners could
provide no other documentary evidence of their marriage.
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that although Weldemichael purported to be an ELF-RC leader in
Ethiopia, and although he had heard reports of Zeru's imprisonment
due to her ELF-RC affiliation, Weldemichael never took enough
interest in Zeru's plight to investigate Zeru's condition in prison
or whether she was released before the two met again in the United
States in 1994. The IJ also observed Weldemichael's demeanor and
stated that he "simply cannot find that Mr. W[e]ldemichael was
credible."
Because petitioners' testimony was not credible, and
because their corroborating evidence was not only insufficient to
support their claims, but in fact contradicted them, the IJ found
that Zeru and Ghebrai had failed to establish either past
persecution or a well-founded fear of persecution following their
return to Eritrea. See 8 C.F.R. § 1208.13(a)-(b) (asylum
applicants bear burden of proof to establish refugee status); see
also Singh v. Gonzales, 413 F.3d 156, 159 (1st Cir. 2005) (citing
Diab v. Ashcroft, 397 F.3d 35, 39 (1st Cir. 2005)) (stating that
corroborating evidence may bolster the testimony of a less than
entirely credible alien). In concluding that petitioners had not
established past persecution, the IJ found that petitioners had
shown neither that they suffered any harm nor that they had
established a nexus to one of the five statutory grounds for
establishing refugee status. 8 U.S.C. § 1158(b)(1)(B)(i); 8 C.F.R.
§ 1208.13(b)(1). The IJ also separately rejected the claims that
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petitioners would suffer persecution on their return or had a well-
founded fear of future persecution. See 8 C.F.R. § 1208.13(b)(2).
The IJ noted that petitioners' close relatives continued to live
peacefully in Eritrea. Indeed, Zeru's brother was in the military,
and her family continued to live in the same home and run the
family business, unmolested by the Eritrean government. The IJ
also denied petitioners' applications for withholding of removal,
protection under the CAT, and voluntary departure.4
Zeru and Ghebrai retained a new attorney, Solomon Bekele,
for their appeal to the BIA. On appeal, petitioners insisted they
had established past persecution. They claimed that the IJ erred
in his credibility finding because he improperly demanded
authenticated documentary evidence to prove petitioners' claims.
They also objected to the IJ's use of demeanor in finding Zeru and
Ghebrai incredible.
Petitioners described inconsistencies regarding the
number of Zeru's rapes as "minor" and explained them as lapses in
memory due to the passage of time. Petitioners also claimed that
the second IJ did not observe proper procedures applicable upon
assigning a new judge to an immigration case. Petitioners
additionally argued that because Zeru had established past
4
Petitioners' brief does not advance any arguments
regarding their claims for withholding of removal, protection under
the CAT, or voluntary departure. Those claims accordingly have
been waived for purposes of this petition. See Dine v. Gonzales,
464 F.3d 89, 93 (1st Cir. 2006).
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persecution, petitioners were entitled to a finding of well-founded
fear of future persecution and a grant of their withholding of
removal claim. Finally, petitioners made a perfunctory argument
that they qualified for protection under the CAT.
On February 7, 2006, the BIA affirmed, incorporating an
earlier August 3, 2005 per curiam order. The BIA upheld both the
lack of credibility finding and the finding that the
inconsistencies were not sufficiently explained. The BIA noted
that it did not find persuasive Zeru's argument that the
inconsistencies were caused by lapses of memory. Further, that
argument did not explain inconsistencies in Ghebrai's and
Weldemichael's testimony. The BIA also noted that the IJ allowably
considered the demeanor of the witnesses.
The BIA also found a lack of corroborating evidence. The
BIA noted that Zeru's immediate family members continued to reside
in Eritrea without harm. As to the argument that this was
explained by the fact that her family members were politically
inactive, the BIA noted that was inconsistent with her husband's
testimony that he was not politically active, but nonetheless he
had been threatened repeatedly by security agents. In turn, it was
implausible that the husband, had he been threatened by government
agents, would have been granted a passport and permitted to travel
to the United States.
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The BIA also addressed petitioners' argument regarding
the assignment of a new IJ to their case. The BIA's decision made
clear that the IJ complied with the requirement that he familiarize
himself with the record and so state on the record. In fact, the
IJ's opinion made repeated reference to details of petitioners'
testimony given in hearings presided over by the previous IJ.
B. Motion to Reopen
Zeru and Ghebrai, represented by new counsel, filed a
motion to reopen on May 5, 2006. The motion was based on alleged
new information about Zeru's PTSD and on alleged ineffective
assistance of counsel stemming from Bekele's representation during
the initial appeal.
Zeru and Ghebrai offered evidence tending to show that
Zeru's PTSD had worsened. Zeru's evidence was that she suffered a
breakdown upon learning of her imminent deportation to Eritrea and
was hospitalized on November 12, 2005, for depression and suicidal
thoughts. Zeru submitted a letter from Dr. John Mirczak, a
psychiatrist who treated her after her release from the hospital,
dated February 1, 2006, and stating that Zeru suffered severe PTSD
as a result of "multiple gang rapes . . . suffered while a
political prisoner in Eritrea." The letter further stated that
Zeru's symptoms would worsen if she were to return to Eritrea.
Petitioners also submitted a "supplementary psychological
assessment" from Dr. Mirczak dated April 27, 2006. Dr. Mirczak
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wrote that "what can sometimes happen with trauma patients is that
they may dissociate" and that their memories "may be repressed."
The supplemental assessment does not explicitly ascribe such
symptoms to Zeru.
The motion also relied on three other letters to
petitioners' attorneys from mental health professionals regarding
Zeru's PTSD diagnosis. The first, from a staff member at the
Psychiatric Institute of Washington named Dianne Carlson, explained
that Zeru had flashbacks to her imprisonment and rapes, and that
Zeru used dissociation and denial to avoid re-experiencing past
traumas. The second letter contained the impressions of a
psychologist, Jane McGoldrick, who met with Zeru twice in April
2006. McGoldrick wrote that Zeru referred in her meetings to her
rape and torture, but that she was "too tearful and distressed to
report details" of those episodes. McGoldrick asserted that Zeru's
recovery was contingent upon the success of her asylum claim.
Finally, the motion to reopen presented a lengthy letter
from F. Barton Evans, a forensic psychologist retained by
petitioners' counsel to review the Wattenberg report and provide a
"literature review" regarding PTSD. The letter aimed at
contradicting the IJ's statement that "it would not be unusual for
a victim of trauma to confuse dates or sequences of events, but it
would be very unusual for a victim of trauma to simply forget that
an event occurred." The IJ was referring to the difference between
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Zeru's testimony and what she told Wattenberg about the number of
different occasions on which she had been raped. Evans wrote that
Wattenberg's affidavit negated the IJ's statement because of its
reference to Zeru "recall[ing] feeling dissociated from her body
during these rapes" and "utiliz[ing] avoidant strategies." Evans
cited several psychological studies for the proposition that PTSD
victims may suffer inconsistent recall of traumatic events. Evans
wrote that "from the perspective of the psychology of trauma, the
presence of dissociative symptoms in fact adds believability to
[Zeru's] report." Petitioners' motion to reopen explained that all
of the foregoing letters "challenged the credibility finding
stemming from Zeru's differing statements regarding the number of
times she was raped."
Zeru and Ghebrai claimed ineffective assistance of
counsel because "Bekele's work was egregiously deficient in
preparation of" the asylum appeal. This was so because Bekele
failed to address adequately in his brief the IJ's adverse
credibility findings in general, and in particular "the most
important ground of appeal, namely the virtual elimination of the
testimony of [Wattenberg,] who was in the best position to address
. . . Zeru's credibility." Petitioners argued that Bekele's
failures amounted to a due process violation. The motion to reopen
did not address the IJ's decisions regarding withholding of
removal, the CAT, or voluntary departure.
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The BIA denied the motion to reopen on August 22, 2006,
in a four-page, closely reasoned order discussing, inter alia, the
specifics of the new medical evidence. The BIA noted the limited
nature of the new evidence. Mirczak's letter opined that Zeru's
memory "could have been [a]ffected by dissociation, but overall she
is being factual about the brutality that happened." McGoldrick,
who said the disorder Zeru was suffering "often has as symptoms"
memory problems and amnesia for aspects of traumatic experiences,
did not say that Zeru suffered those symptoms. The BIA stressed
that Evans did not even conduct a direct examination of Zeru.
The BIA met head-on Evans's criticism of the IJ's
statement that "it would not be unusual for a victim of trauma to
confuse dates of sequences of events, but it would be very unusual
for a victim of trauma to simply forget that an event occurred."
Even accepting Evans's criticism, the BIA held that it would not
likely have changed the outcome of the proceeding, for several
reasons. Zeru's inconsistent statements about the number of
occasions on which she was raped were not the sole basis for the
lack of credibility finding, which rested on numerous independent
inconsistencies as well as upon the IJ's assessment of Zeru's
demeanor. Also, Zeru had failed to provide corroborating evidence.
The entire body of medical evidence rested on the credibility of
her reports to the doctor, but the IJ had, based on substantial
evidence, found her not to be credible in her reporting of her
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history. Further, the basic PTSD diagnosis evidence was before the
BIA in the prior appeal and had been considered.
As to the ineffective assistance claim, the BIA reasoned
that it also failed because even considering the new evidence and
new emphasis on the effects of trauma on memory (the argument prior
counsel, it was argued, should have made), the respondent still had
not demonstrated that the outcome might have differed.
Zeru and Ghebrai timely petitioned to this court for
review of the BIA's rejection of their asylum appeal and the
Board's denial of the motion to reopen.
II.
Petitioners urge this court that "the Petition for Review
of the Motion [to Reopen] should . . . be held to be the functional
equivalent of the direct appeal" such that the two petitions would
be reviewed under the same standard and with reference to the
entire administrative record. Based on this misunderstanding,
petitioners conflate their arguments challenging the denial of
asylum and the denial of the motion to reopen.
The two petitions are legally distinct. See Keo Chan v.
Gonzales, 413 F.3d 161, 165 n.3 (1st Cir. 2005) ("[T]he legal
separateness of the denial of the asylum claim and the motion to
reopen is demonstrated by the fact that each is a separate
appealable order."); see also 8 U.S.C. § 1252(b)(4)(A) ("[T]he
court of appeals shall decide the petition only on the
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administrative record on which the order of removal is based.")
(emphasis added). We review them separately according to their
respective records and standards of review. See, e.g., Zeng v.
Gonzales, 436 F.3d 26, 29, 32 (1st Cir. 2006); Olujoke v. Gonzales,
411 F.3d 16, 21, 23 (1st Cir. 2005); Fesseha v. Ashcroft, 333 F.3d
13, 18, 20 (1st Cir. 2003).
A. Denial of Asylum
Petitioners challenge the denial of asylum by attacking
the IJ's credibility findings. Petitioners assert that the IJ did
not give sufficient weight to evidence provided by Wattenberg, who
"would have been able to address the impact of PTSD on Ms. Zeru's
memory and ability to recollect certain events related to her
trauma." This is dispositive, petitioners argue, because they
characterize the IJ's credibility finding as turning on Zeru's
inconsistent testimony as to the number of times she was raped
after her imprisonment in 1987. Petitioners also argue that the
credibility finding, to the extent it was based on other
inconsistent testimony or deficiencies in corroborating evidence,
was based on trivial or immaterial evidence. We hold that
substantial evidence supports the IJ's findings and deny the
petition for review.
We must affirm an IJ's findings of fact, including the
credibility of witnesses, if they are "supported by reasonable,
substantial, and probative evidence on the record considered as a
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whole." INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (quoting
8 U.S.C. § 1105a(a)(4)) (internal quotation marks omitted). An
IJ's credibility determinations demand deference where (1) the
discrepancies and omissions described by the IJ are actually
present in the record; (2) those discrepancies and omissions
provide specific and cogent reasons to conclude that the
petitioners provided incredible testimony regarding facts central
to the merits of the asylum claim; and (3) petitioners do not
provide a convincing explanation for the discrepancies and
omissions. Zheng v. Gonzales, 464 F.3d 60, 63 (1st Cir. 2006)
(citing Hoxha v. Gonzales, 446 F.3d 210, 214 (1st Cir. 2006)).
The IJ based his findings of incredibility on, inter
alia, numerous inconsistencies in Zeru's testimony. First,
although Zeru told Wattenberg that she had been gang raped three
times during her imprisonment from 1987-88, she testified to the IJ
that she had been raped once, and then later, that she had been
raped twice. Second, Zeru testified in August 1999 that in
September 1994, Eritrean security officers interrogated her for ten
hours, at one point pointing a gun at her and threatening to kill
her. She testified that the encounter terrified her. In November
2003, however, Zeru described the episode as a four-hour
questioning, and stated that she did not take the officers'
warnings seriously. Third, Zeru told Wattenberg that she met
Ghebrai when working at a pharmacy owned by her father. In
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contrast, Zeru testified to the IJ that they met at the government
hospital where Ghebrai worked and where Zeru did volunteer work.
Fourth, Zeru testified in 2000 that she completed twelfth grade,
while in 2003 she testified that she attended school until the
tenth grade. Fifth, Zeru gave inconsistent testimony as to how
long she owned her own business in Asmara and what products her
store sold.
As to Ghebrai's testimony, the IJ noted inconsistencies
as to when he learned of Zeru's participation in the ELF-RC, as
well as conflicting testimony regarding the location of Ghebrai's
alleged encounters with Eritrean security forces searching for Zeru
after her departure to the United States. The IJ also stressed
that Ghebrai's demeanor during his November 2003 testimony "was one
of a person who completely lacked v[e]racity."
Morever, the IJ cited discrepancies and omissions in the
petitioners' corroborating documentary evidence that bolstered his
determination of incredibility. The document that Zeru offered as
proof of her 1987-88 imprisonment could not be authenticated when
she sent a copy to the United States Embassy in Ethiopia. There
were reasons to doubt another important document. Petitioners'
marriage certificate revealed an inconsistency with Asmara
municipal records regarding Zeru's date of birth, and the whited-
out document displayed signs of tampering. The documentary
problems continued: Zeru testified that hospital records were
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available in Eritrea to corroborate her outpatient treatment for
depression in 1988. In spite of being advised by an IJ to obtain
those documents, and in spite of the fact that her family lives in
proximity to the hospital in Eritrea, Zeru was able neither to
produce the hospital records nor to explain why she did not produce
them. Nor was Zeru able to produce business records or the
mandatory annual government permits for the business in Asmara that
she testified at various times to having operated for either one
year or for three and a half years. Petitioners were not even able
to produce, at an IJ's request, income tax filings, employment-
related documents, or any other documents that could corroborate
that they were indeed married.
Petitioners concede, appropriately, that these
discrepancies are "specific and cogent" to a finding of
incredibility, and that some of them "do go to the heart of the
asylum claim." Petitioners seem to suggest, however, that had the
IJ given due weight to Wattenberg's testimony, her diagnosis of
PTSD would have adequately explained the discrepancies in Zeru's
testimony regarding traumatic events, especially variations in the
number of alleged rapes.
During their direct appeal to the BIA, petitioners did
not challenge the credibility determination on grounds that the
inconsistencies resulted from PTSD. Instead, petitioners attempted
at that stage to explain away testimonial inconsistencies as "the
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result of memory laps[e]" due to the passage of time between events
in Eritrea and the asylum hearings. Issues not raised before the
BIA generally may not be raised for the first time on a petition
for review. Bernal-Vallejo v. INS, 195 F.3d 56, 64 (1st Cir.
1999).
Even construing petitioners' arguments in front of the
BIA as encompassing the PTSD theory, however, we cannot conclude
that "any reasonable adjudicator" would be compelled to disagree
with the IJ's credibility determination. 8 U.S.C. § 1252(b)(4)(B).
Wattenberg's Assessment Report was based on Zeru's oral
representations to Wattenberg, which the IJ concluded were
untrustworthy.
Even so, the IJ did not ignore the report or Wattenberg's
diagnosis of Zeru as suffering from PTSD. The IJ expressly
acknowledged that "it would not be unusual for a victim of trauma
to confuse dates or sequences of events." The IJ expressed his
doubt that such an effect would be sufficient to explain Zeru's
disparate statement to Wattenberg and her testimony as to the
number of times she was raped. No evidence was ever submitted by
petitioners to contradict that specific doubt. Indeed, no specific
evidence was submitted to the BIA on this point until the motion to
reopen, when Evans addressed it in his letter, and he had not even
met Zeru.
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Further, even assuming arguendo the accuracy of
Wattenberg's diagnosis of PTSD, petitioners do not claim that PTSD
clouded Zeru's testimony regarding non-traumatic facts of life such
as dates of birth, educational level, where she met her future
spouse, or how long she owned her own business. Nor does
Wattenberg's report offer any explanation of the many gaps and
contradictions within petitioners' documentary evidence. Taken as
a whole, the record available to the BIA at the time of
petitioners' direct appeal provides substantial evidence in support
of the IJ's credibility determination.
B. Denial of Motion to Reopen
Petitioners challenge the BIA's denial of the motion to
reopen on two grounds. They first assert a due process violation
resulting from an alleged ineffective assistance of counsel during
the appeal of the asylum proceedings to the BIA. They also argue
that the BIA erred in discounting the newly presented evidence of
Zeru's PTSD in denying the motion to reopen.
Motions to reopen deportation proceedings are disfavored
due to the "strong public interest in bringing litigation to a
close . . . promptly." Fesseha, 333 F.3d at 20 (quoting INS v.
Abudu, 485 U.S. 94, 107 (1988)) (internal quotation marks omitted).
The normal deference granted agency decisions on motions to reopen
applies with greater force in the immigration context because of
the implications for foreign relations. Ven v. Ashcroft, 386 F.3d
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357, 360 (1st Cir. 2004) (citing Abudu, 485 U.S. at 110). We
review the BIA's denial of a motion to reopen for abuse of
discretion, reversing the denial "only if the BIA 'misread the law'
or acted 'in an arbitrary or capricious fashion.'" Fesseha, 333
F.3d at 20 (quoting Carter v. INS, 90 F.3d 14, 17 (1st Cir. 1996)).
A motion to reopen proceedings before the BIA must state
"new facts that will be proven at a hearing to be held if the
motion is granted." 8 C.F.R. § 1003.2(c)(1). The evidence sought
to be offered must be material and neither available nor
discoverable at the former hearing. Id. Ineffective assistance of
counsel claims, in certain circumstances, may satisfy these general
requirements. Saakian v. INS, 252 F.3d 21, 25 (1st Cir. 2001).
While aliens in deportation proceedings do not enjoy a
Sixth Amendment right to counsel, they have due process rights in
deportation proceedings. Id. at 24. As an "integral part" of this
procedural due process, aliens in deportation proceedings have a
statutory right to be represented by counsel at their own expense.
Id. (quoting Batanic v. INS, 12 F.3d 662, 667 (7th Cir. 1993)); see
also 8 U.S.C. § 1362. "Ineffective assistance of counsel in a
deportation proceeding is a denial of due process only if the
proceeding was so fundamentally unfair that the alien was prevented
from reasonably presenting his case." Lozada v. INS, 857 F.2d 10,
13 (1st Cir. 1988) (quoting Ramirez-Durazo v. INS, 794 F.2d 491,
499-500 (9th Cir. 1996)) (internal quotation marks omitted). To
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succeed on an ineffective assistance of counsel claim, petitioners
must show "a reasonable probability of prejudice" resulting from
their former representation. Saakian, 252 F.3d at 25.
The gravamen of petitioners' argument before the BIA and
this court is that their appeal of the denial of asylum was
prejudiced by Bekele's failure to challenge adequately the IJ's
credibility determination. Petitioners peg their arguments to
counsel's failure to argue that Wattenberg's PTSD diagnosis
explained the inconsistencies and undercut the lack of credibility
finding.
Neither the IJ nor the BIA rested either solely or
necessarily on Zeru's inconsistent testimony concerning traumatic
past events in denying petitioners asylum. The BIA noted in its
denial of the motion to reopen that it had reviewed Wattenberg's
report and testimony. The Board, informed by that information,
concluded that although petitioners had challenged some of the IJ's
bases for his credibility determination, the board "[did] not find
that [petitioners] have demonstrated that all bases . . . were
erroneous." Therefore, even if Bekele's initial appeal were
deficient in some respects, petitioners have failed to demonstrate
that the result would have been any different given their present
arguments. In addition, "the Board's careful attention to
[petitioners'] motion to reopen . . . negated any possible
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violation" of petitioners' Fifth Amendment rights. Lozada, 857
F.2d at 14.
Petitioners raise another due process issue related to
Wattenberg's testimony. Petitioners argue the IJ improperly
limited Wattenberg's testimony and thereby "deprived Ms. Zeru of
the opportunity to present fundamental evidence critical to her
case." Petitioners misstate the record.5 During the November 26,
2003 hearing, the IJ admitted Wattenberg's Assessment Report into
evidence and allowed petitioners' attorney an opportunity to
examine Wattenberg beyond the report. Counsel declined to do so.
Following the government's cross-examination of Wattenberg, the IJ
offered petitioners' counsel an opportunity to conduct redirect
questioning; counsel again declined. Petitioners do not claim
their representation before the IJ was deficient. Further, the
record reveals that the IJ reviewed Wattenberg's report in detail.
Petitioners received a full and fair opportunity to present their
expert testimony. That the IJ considered Wattenberg's testimony
and reasonably discounted its evidentiary weight does not offend
the Fifth Amendment.
Finally, petitioners claim that the BIA erred in
discounting the new evidence of Zeru's PTSD accompanying the motion
to reopen. The BIA considered that evidence but concluded that
5
Unfortunately, Zeru has mischaracterized the record
throughout her brief, and amici have relied upon those
mischaracterizations.
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"evidence of [Zeru's] need for psychiatric care in late 2005 is not
a sufficient basis to overturn the comprehensive, adverse
credibility finding from December 2003." Indeed, petitioners'
"new" evidence simply reiterates Wattenberg's previous diagnosis of
PTSD. The petitioners' brief concedes that "[a]ll of this
information could have been provided by Dr. Wattenberg if she had
been given a chance to testify fully" at the asylum hearings.
Wattenberg was given that chance. The PTSD diagnosis was
considered during the asylum proceedings and before the BIA. We
cannot say the BIA erred in holding the additional evidence of
Zeru's PTSD did not present "new facts" justifying a motion to
reopen. 8 C.F.R. § 1003.2(c)(1); cf. Lemus v. Gonzales, 489 F.3d
399, 401 (1st Cir. 2007). The BIA did not act arbitrarily or
capriciously in denying petitioners' motion.
We acknowledge the assistance provided by the brief filed
by amici. Zeru and amici correctly argue that the IJ and the BIA,
in assessing credibility of aliens who are victims of trauma and
consequently suffer from PTSD, should be mindful that serious
memory problems are a common symptom of PTSD. See Br. of Amici
Curiae in Support of the Pet'rs 18-19. They also correctly argue
that expert medical evidence may assist the agency. Id. 27-28.
The record reveals that the BIA and IJ adhered to both
principles in this case. The IJ explicitly recognized that trauma
victims may give discrepant testimony. The IJ articulated his view
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that this did not explain the discrepancies between Zeru's
testimony and her report to Wattenberg as to the number of rapes.
Zeru's evidence did not dispute this drawing of the line by the IJ.
Contrary to Zeru's claim that the BIA rejected the new evidence of
Zeru's medical condition in 2005, the BIA carefully considered that
evidence, as described.
Amici also join Zeru in arguing that she was not given a
fair chance to respond to doubts about her credibility. Not so.
There is no presumption that an alien seeking refugee status is
credible. Nor is there an assumption that if the IJ has not made
an express finding of non-credibility, the alien's testimony must
be taken as credible. The burden of persuasion is Zeru's, 8 C.F.R.
§ 1208.13(a), and that requires her to put forth sufficiently
credible testimony or other evidence to establish her eligibility
for asylum.
It was, or should have been, self-evident to Zeru and her
counsel that there were weaknesses in her case from her
presentation of evidence alone. First, on the issue of the number
of times she had been raped, she was inconsistent. The
inconsistency between her testimony to the IJ on that point and her
statements to Wattenberg was obvious. Second, Wattenberg's
affidavit attempted to respond by saying that Zeru "recall[ed]
feeling dissociated from her body" during the rapes and adverted to
avoidance as a symptom of her PTSD. Wattenberg was not barred from
-29-
giving further testimony on this point or from explaining the
discrepancies. Third, Zeru had the opportunity and means to
provide competent corroborative evidence. The documentary evidence
she presented appeared to be fraudulent. Fourth, during the course
of the hearing, the IJ made it clear he had reason to doubt Zeru's
claims. During one colloquy between Zeru and the IJ during the
November 23, 2003, hearing, the IJ specifically pressed Zeru on
inconsistencies between her testimony and facts contained in the
Wattenberg report. For instance, the IJ asked Zeru multiple times
whether there were only two rapes during her imprisonment in
Ethiopia. The IJ elicited Zeru's unequivocal denial that a third
rape had occurred. Thus Zeru herself contradicted what she told
Wattenberg. The IJ also asked Zeru whether her father ever owned
a pharmacy, as stated in the Wattenberg report. Zeru answered that
he did not. As for petitioners' suspect documentary evidence, the
IJ indicated during the hearings that he had reason to believe they
were fraudulent. These exchanges put petitioners and their
attorney on notice of the IJ's misgivings, but petitioners never
offered satisfactory explanations for any of these discrepancies.6
6
To the extent Zeru and amici argue that as a mechanical
matter the IJ must always, before the end of proceedings,
articulate a belief that a petitioner is not credible and provide
an additional opportunity to respond, we reject the argument.
Neither the regulations nor procedural due process require such a
procedure. Indeed, it would be unusual.
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There may be cases in which the failure by an IJ or the
BIA to give due consideration to expert evidence regarding PTSD
justifies dislodging a decision of the Board. Cf. Mukamusoni v.
Ashcroft, 390 F.3d 110, 122-23 (1st Cir. 2004). For the reasons
described, this is not such a case.
We affirm the decisions of the BIA.
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