Kaita v. Atty Gen USA ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
4-3-2008
Kaita v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 06-3288
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-3288
FATMATA KAITA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order
of the Board of Immigration Appeals
(No. A97-965-177)
Immigration Judge: Hon. Esmeralda Cabrera
Argued December 13, 2007
Before: SLOVITER, AMBRO, Circuit Judges,
and POLLAK,* District Judge
(Filed: April 3, 2008)
_____
Matthew J. Harris (Argued)
Brooklyn, N.Y. 11215-0000
Attorney for Petitioner
Ada E. Bosque (Argued)
*
Hon. Louis H. Pollak, Senior Judge, United States District
Court for the Eastern District of Pennsylvania, sitting by
designation.
1
Edward J. Duffy
United States Department of Justice
Office of Immigration Litigation
Washington, D.C. 20044-0000
Regina S. Moriarty
United States Department of Justice Tax Division
Washington, D.C. 20044-0000
Attorneys for Respondent
OPINION OF THE COURT
SLOVITER, Circuit Judge.
Before us is a petition for review filed by Fatmata Kaita, a
native and citizen of Sierra Leone, of the decision of the Board
of Immigration Appeals (“BIA”) denying her claims for asylum,
withholding of removal, and CAT protection on the basis of the
adverse credibility finding made by the Immigration Judge
(“IJ”). Kaita claims that she was persecuted and tortured by the
rebels who came to power in Sierra Leone in the 1990s. We
must decide whether the IJ’s finding is supported by substantial
evidence, as well as whether that finding was affected by the IJ’s
frequent interruptions during the removal hearing and the
apparent translation problems during Kaita’s testimony.
I.
A. Factual Background
Kaita, who is fifty-six years old, was born and raised in
Bo Town, Sierra Leone and lived there until 1997. She attended
a Muslim school in Sierra Leone for ten years (approximately
equivalent to a ninth grade education). She was married and has
four children.
Kaita’s husband disappeared in 1997, at a time when
there were many attacks in Bo Town by rebel forces belonging
2
to the Revolutionary United Front (“RUF”).1 Kaita stated that
her husband had gone to the mosque to pray very early in the
morning on the day he disappeared, and that the rebels broke
into her home at five o’clock that morning when she was alone
with the children. The rebels asked where her husband was,
“arrested,” tortured and beat her and the children, and then set
fire to their house. A.R. at 114.
Kaita stated that the rebels had killed her husband
because he and she supported Ahmad Tejan Kabbah, the
president of Sierra Leone. The rebels stated that they knew that
Kaita and her husband supported the Sierra Leone People’s Party
(“SLPP”), the official governing party of Sierra Leone opposed
by the rebels. Kaita testified that she had been a member of the
SLPP for about one year prior to the rebel attack and that it was
not a secret that she and her husband supported that party.
Kaita further testified that as a result of the 1997 attack
she moved to Freetown into the home of her husband’s brother.
On January 6, 1999, while she was in Freetown, rebel forces
captured her when she went out to get food for her children. The
rebels detained her for nineteen days at a military barracks,
where she was forced to cook and wash clothing for the rebels.
She was also beaten, raped and tortured repeatedly throughout
her detention by many different men. There were about twenty
other women who were captured, and the rebels killed at least
one of them. The rebels also threatened to kill Kaita.2
Ultimately, troops from other African countries rescued
Kaita and took her to the hospital where she spent seven days
1
The RUF is known for its extreme violence, including,
inter alia, kidnapping women to use as sex slaves and forcibly
recruiting child soldiers.
2
Kaita’s brief states that she testified that the rebels told
her that it was known that she was an ethnic Mandingo and
supporter of Ahmad Tejan Kabbah, but because that section of the
transcript is indiscernible we can find only a reference to the rebels
threatening Kaita due to her support for Ahmad Tejan Kabbah.
3
receiving treatment for the injuries she sustained from the gang
rapes and beatings. Although she could not remember the exact
dates when she was in the hospital, Kaita did testify that by
January 25, 1999, she was at the hospital and out of pain. When
Kaita was released from the hospital, she discovered that her
husband’s brother and her four children were missing. She
learned that her children had been taken in by various neighbors.
She testified that she remained in Freetown at the home of her
husband’s family for five years because she felt it had become
safe due to the government’s assurances that it had driven out
the rebels. She left Sierra Leone in 2002 with her children and
went to Guinea to live with her husband’s friend.
Kaita’s testimony that she obtained a passport in
Freetown, Sierra Leone, in December 2002 is corroborated by
her production of a passport dated December 23, 2002. At
another point during her testimony, Kaita reiterated that she “left
Sierra Leone the 12 month, the 29th.” A.R. at 137. Kaita stayed
in Guinea not quite three months before coming to the United
States because the government of Guinea beat and arrested
refugees from Sierra Leone. Her children remain in Conakry,
the capital of Guinea.
There is some lack of clarity in the transcript regarding
the dates when Kaita left Sierra Leone for Guinea and when she
left Guinea for the United States. At one point, the transcript
reads that Kaita left Sierra Leone “the two month, 29th, 2002,”
A.R. at 131, and she “left Guinea the 10 month the 15.” A.R. at
132. At that point, however, Kaita’s counsel stated, “I couldn’t
understand what the interpreter just said . . . Can you just repeat
that?” A.R. at 132. The IJ then answered, “[h]e just said [s]he
left Guinea the 3rd month the 16th,” A.R. at 132, to which
Kaita’s counsel responded, “Oh, I keep hearing something . . . .”
A.R. at 132. The IJ then sought clarification from Kaita, asking,
“[a]nd you left Sierra Leone December of 2002. Is that right?”
A.R. at 132. Kaita replied in the affirmative and also stated that
she then left Guinea in 2003. Later, the IJ asked Kaita, “earlier
you said that you had left Sierra Leone on March 29, 2002 to go
to [Guinea]. How is it then that you got this passport issued to
you [in Sierra Leone] December 23, 2002?” A.R. at 137. We
have canvassed the record and find no instance in which Kaita
4
testified that she left Sierra Leone on March 29, 2002; the IJ’s
question, therefore, appears to have misstated Kaita’s
testimony.3
Kaita testified that she arrived in the United States on
March 26, 2003 via Air France airlines. Although she had a
Sierra Leonian passport in her own name, for unexplained
reasons she borrowed a passport from her husband’s friend to
leave Guinea.
B. IJ Conduct and Translation Issues
In her brief, Kaita argues that the IJ made it impossible
for her to testify about her life in Guinea and then based her
negative credibility finding in part on lack of detail. Our
examination of the transcript supports this contention. The IJ
interjected during Kaita’s testimony no less than thirty-three
times. Some of the interjections can be fairly characterized as
exasperated expressions to Kaita (sometimes interrupting her
testimony) and to the translator, some were admonishments to
counsel to hurry up, and others were attempts to direct the
questioning of Kaita. Although some interjections were
reasonable attempts to clarify certain facts, other interjections
appear to have been disruptive. What follows are some
examples of those interjections.
During a preliminary proceeding held on July 20, 2004,
when asked how old she was, Kaita responded (through the
translator), “I’m 52 years old.” A.R. at 96. The IJ asked, “You
sure?” and Kaita responded, “I’m 51 but some over there.” A.R.
at 96. The IJ asked, “What?” To which Kaita replied, “I’m 51
but a little bit, some time over 51.” A.R. at 96. The IJ then
exclaimed, “Sometimes you’re over 51, that’s interesting. Okay.
Let’s move on here. It’s just amazing. It’s amazing for a
3
The transcript then indicates that Kaita said that she “left
Sierra Leone the 10th month.” A.R. at 137. That answer is
inexplicable in light of the fact that in her next answer, responding
to the IJ’s attempt at clarification, Kaita testified that she “left
Sierra Leone the 12 month, the 29th” of 2002. A.R. at 137.
5
Wednesday morning what one hears.” A.R. at 97. Counsel and
the IJ then agreed that Kaita was in fact 51 years old, but would
turn 52 in a few months, thereby supporting her assertion that
she was “some time over 51.” Kaita never said that she was
“sometimes” over 51.
During the principal evidentiary hearing, when Kaita
explained that she could no longer remember the exact date in
1997 on which her husband disappeared because it had been a
traumatic event, the IJ interrupted, asking, “excuse me, ma’am,
you expect me to believe that your husband goes missing and
you don’t remember the day he goes missing? . . . .” A.R. at
111. Then when counsel asked Kaita what happened to her that
day (as distinct from her husband), the IJ said, “What day, I
don’t know what day. All I know is the year.” A.R. at 111.
Later, when Kaita was explaining what happened to her during
the 1997 Bo Town incident, the IJ interrupted to say, “ma’m,
what happened, just tell me what happened. Did anything
happen?” A.R. at 113-14. In another instance, after Kaita’s
counsel asked her about the governing structure in Sierra Leone,
the IJ said, “Counsel, what kind of question is that?” A.R. at
110.
When counsel was asking Kaita about her experience in
the military camp in which she was gang raped, the IJ
interjected, “Can you just stop her please. Don’t let her continue
going on.” A.R. at 118. When Kaita attempted to explain how
another woman at the military camp had been killed by the
rebels in the 1999 incident, and stated, “they used to torture us
and beat us and the way they raped that lady, she bleeded, there
was a lot of blood coming from her until she, she died,” A.R. at
119, the IJ immediately interjected, in perhaps the most
disturbing example of the IJ’s conduct at the hearing, “Okay, so
she bled to death. Let’s move on.” A.R. at 120.
In addition, the transcript reveals that the IJ hurried Kaita
and her counsel through the proceedings. She stated soon after
the hearing began, “Counsel, please, I have a case at 10:30. I
6
need to hear this today.”4 A.R. at 109. When Kaita was
explaining her hospital treatment following the gang rape, the IJ
stated, “Okay, let’s move on.” A.R. at 122. Later in the same
discussion, the IJ told Kaita’s counsel, “Proceed counsel, please,
I’d like to wrap this up now.” A.R. at 123. During the part of
the testimony in which Kaita talked about the dates when she left
Sierra Leone for Guinea and Guinea for the United States, the IJ
asked, “Counsel, anything further?” A.R. at 131. And then a
very short time later, “Okay, anything else, counsel?” A.R. at
132. At one point, Kaita’s counsel asked permission to engage
in a line of questions regarding Kaita’s passport, and the IJ said,
“counsel, it is 10:30 and we’ve done nothing here, come on, let’s
finish this up.” A.R. at 133. Counsel asked permission to ask
“[j]ust a couple more questions.” A.R. at 133. To which the IJ
responded, “No, not a couple more questions. Wrap it up. . . .
That’s it.” A.R. at 133.
The IJ also interrupted, directed Kaita’s testimony, and on
occasion apparently created confusion. For example, when
Kaita was trying to explain the January 1999 incident, the IJ told
her she did not want to hear about whether the children were
hungry; she just wanted to hear what happened.5 When Kaita’s
counsel asked why the rebels attacked her, the IJ cut off
counsel’s question and said she wanted to know where Kaita was
when she was beaten. There are numerous examples when the IJ
4
Even though the IJ had another “case” on her docket, that
burden cannot be laid at Kaita’s feet. At a hearing held on July 20,
2004, the IJ asked Kaita’s counsel how long he would need to
conduct the full hearing, and he told the IJ he needed two hours.
The IJ set the hearing for nine o’clock in the morning on February
14, 2005. If the IJ had another matter scheduled at 10:30, that
would only have allowed ninety minutes, not two hours, for Kaita’s
case.
5
Kaita stated, “I went to buy food for my children. The
children in the house was hungry.” A.R. at 116. The IJ asked,
“What?” To which Kaita replied, “The children was home
hungry.” A.R. at 116. The IJ then said, “Ma’m, I said what
happened not whether the children were hungry.” A.R. at 116.
7
directed the questioning of Kaita, usurping counsel’s role.
After counsel advised the IJ at a preliminary hearing that
Kaita’s best language was Mandingo, the IJ procured a
Mandingo translator who remained for each of the subsequent
proceedings. It appears that there was significant difficulty with
the translation, as both the IJ and the translator had numerous
problems understanding each other, and there are sections of the
transcript that are effectively unintelligible. During Kaita’s
testimony, the IJ interjected, “For the record, the respondent was
correcting the interpreter’s translation in English, so she’s
obviously understands English [sic].” A.R. at 107.
There were instances where the IJ either explicitly stated
that she could not understand the interpreter or the testimony
came out indiscernible. See, e.g., A.R. at 117, 118, 119, 130,
131, 132. Most of those instances occurred during key
testimony, including, for example, Kaita’s discussion of her
dates of entry, see A.R. at 132, which was one of the principal
bases for the IJ’s finding that Kaita was incredible.
At one point, the IJ said, “counsel, excuse me, I would
like the respondent right now to get up and trade seats with the
interpreter instead of her leaning over your notes and reading her
statement. . . . I’m satisfied that she speaks English and
understands it. . . Ma’am, change seats with the interpreter . . .
well excuse me, I, I, at this point in time having said she doesn’t
speak English but having her correct the English translation of
the interpreter, now at least twice, I [am] really not willing to
give that statement the benefit of the (indiscernible).” A.R. at
112. The fact that Kaita corrected the translator does not mean
that she understands English well, much less to communicate
fully during a legal proceeding; it could mean that she
understood some English, and in some instances as well as or
better than the interpreter. A short time later, the IJ said to the
interpreter, “what are you doing, just translate, okay? . . . I don’t
want you making any kind of movements here. . . . Your job is
only to translate. . . . You don’t have to try and enact things out.
You’re not in the theater.” A.R. at 115. At another point, the IJ
told the translator, “What are you translating, I don’t understand
you. . . . What is it you’re talking about?” A.R. at 121. With
8
respect to the injuries Kaita sustained at the military barracks,
the IJ had to ask the translator three times to clarify what he was
saying.
C. IJ Decision
After the hearing, the IJ issued her oral decision, in which
she concluded that Kaita’s entry date and location were
unknown. According to the record, Kaita filed an application for
asylum on October 29, 2003, but the record fails to show when
she entered the United States. Thus, the IJ decided that Kaita
had not shown that she had filed the application for asylum
within one year of her date of entry. Nonetheless, the IJ
reviewed Kaita’s entire application, including the request for
asylum. The IJ concluded that Kaita had “not testified in a
believable, consistent nor persuasive fashion and as such has not
met her burden of proof.” A.R. at 81. Specifically, the IJ found
Kaita’s testimony to be “extremely vague and lacking in
specificity.” A.R. at 81.
The IJ pointed to the (1) “huge time gaps” in Kaita’s
testimony/failure to remember precise dates, A.R. at 81, and (2)
contradictions in Kaita’s testimony. With respect to timing, the
IJ said that Kaita could not remember precise dates for important
events, such as her husband’s disappearance. The IJ asserted
that this was significant because the disappearance of her
husband seemed to be a memorable event. The fact that Kaita
could not remember the date “certainly raises questions
regarding this respondent’s claim,” according to the IJ. A.R. at
82. The IJ also thought that the fact that Kaita could not
remember the precise date of her hospitalization after being gang
raped for nineteen days in 1999 “present[ed] additional questions
regarding the respondent’s credibility.” A.R. at 82.
The IJ also stated that Kaita’s testimony was at odds with
her written submissions. The only example the IJ provided was
that Kaita said she was persecuted due to her ethnicity in her
Form I-589, but her testimony did not mention ethnic
persecution.
With respect to the IJ’s asserted contradictions, the IJ
9
cited conflicting testimony about where and when Kaita obtained
her passport. Kaita’s passport was issued on December 23,
2002. The IJ stated that Kaita had initially testified that she
departed Sierra Leone for Guinea on March 29, 2003, but that
contradicted the fact that the passport was obtained in Sierra
Leone in December 2002.
Finally, the IJ concluded that “this respondent has not
been totally persuasive and consistent and it appears that much
of this claim that’s been presented is not really believable.” A.R.
at 83. The IJ stated that it was more likely that Kaita left Sierra
Leone “because of the suffering and the financial hardship and
the difficulties in the living conditions more than on any possible
grounds of persecution.” A.R. at 83. Because the IJ concluded
that Kaita had not met her burden of proof on the asylum claim,
she necessarily decided that Kaita had not met her burden of
proof on the withholding of removal claim and the CAT claim.
The IJ stated that Kaita had not, in light of the entire record,
“presented a consistent, believable, and sufficiently detailed
claim to support a grant of political asylum . . . .” A.R. at 84.
D. BIA Decision
The BIA adopted and affirmed the IJ’s decision in a
written decision that included several additions. It stated that
Kaita failed to meet the one-year filing deadline for filing a
petition for asylum because there had been multiple
discrepancies with respect to the date of Kaita’s arrival in the
United States. The BIA also stated that the IJ’s adverse
credibility finding was sufficiently supported by the record
because of the lack of details in Kaita’s testimony and her failure
to remember precise dates. The BIA did not find that the IJ’s
comments and interruptions or Kaita’s lack of education
sufficiently explained the discrepancies in the record.
Kaita timely filed her petition for review.
II.
When the BIA’s decision substantially relies upon the
decision of the IJ, this court has jurisdiction to consider the IJ’s
10
decision, as well as the BIA’s decision. Xie v. Ashcroft, 359
F.3d 239, 242 (3d Cir. 2004). Because the BIA adopted the IJ’s
adverse credibility determination and added to that conclusion,
we consider both the IJ’s decision and that of the BIA.
This court reviews adverse credibility determinations
under the substantial evidence standard. Id. at 243. “Under
[that] standard, the [BIA’s] adverse credibility determination
must be upheld on review unless ‘any reasonable adjudicator
would be compelled to conclude to the contrary.’” Gao v.
Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002) (quoting 8 U.S.C. §
1252 (b)(4)(B)). Because Kaita’s petition was filed before May
11, 2005, the effective date of the REAL ID Act, the applicable
law was that minor inconsistencies did not support an adverse
credibility finding. Id. It was clear then that discrepancies in a
petitioner’s testimony must involve the “heart of the asylum
claim” in order to support an adverse credibility finding. Id.
(citation and internal quotations omitted).6 We have held that
“[a]dverse credibility determinations based on speculation or
conjecture, rather than on evidence in the record, are reversible.”
Id. (citation omitted).
III.
We turn now to examine Kaita’s claims.
A. Asylum
As a threshold matter, an alien seeking asylum must
prove by clear and convincing evidence that she filed her
application for asylum within one year of her arrival in the
United States. 8 U.S.C. § 1158(a)(2)(B). A court may consider
an untimely asylum application only if the alien can demonstrate
changed circumstances that affect her eligibility for asylum or
extraordinary circumstances why she did not file the application
6
Under the REAL ID Act, “a trier of fact may base a
credibility determination . . . without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of the
applicant’s claim. . . .” 8 U.S.C. § 1158(b)(1)(B)(iii).
11
within one year. Id. § 1158(a)(2)(D). However, “[n]o court
shall have jurisdiction to review any determination of the
Attorney General under [§ 1158(a)(2)].” Id. § 1158(a)(3).
Both the IJ and the BIA made the determination under §
1158(a)(3) that Kaita failed to prove by clear and convincing
evidence that she had filed her asylum application within one
year of her date of entry. In light of that finding, we have no
jurisdiction to review Kaita’s claim for asylum. See 8 U.S.C. §
1158(a)(3).
B. Withholding of Removal
In order to qualify for withholding of removal,7 a
petitioner must establish a “clear probability,” that is, that “it is
more likely than not” that her life or freedom would be
threatened if returned to her country due to her race, religion,
nationality, membership in a particular social group, or political
opinion. Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003)
(citations and internal quotations omitted). If an applicant meets
that standard, the Attorney General must grant withholding of
removal. 8 U.S.C. §1231(b)(3)(A). An applicant can meet the
standard by proving past persecution, which creates a rebuttable
presumption of future persecution. 8 C.F.R. § 1208.16(b)(1).
That presumption can be rebutted if there has been a
fundamental change in circumstances in the country of origin or
if the applicant could safely move to another part of the country.
Id.
The IJ rejected Kaita’s withholding claim because the IJ
concluded that she had “not testified in a believable, consistent
nor persuasive fashion and as such has not met her burden of
proof.” App. at 81. As we noted above, the IJ attributed her
adverse credibility finding to Kaita’s inconsistency and
vagueness with respect to timing and to contradictions in her
overall testimony.
7
We have jurisdiction to review final orders of removal
pursuant to 8 U.S.C. § 1252(a)(1).
12
1. Timing
First, the IJ said that there were “significant time gaps
that raise many questions regarding the claim itself.” A.R. at 81.
That conclusion is not adequately supported by the evidence.
After searching the record, we are unable to pinpoint any
significant time gaps. The record evidence supports the
following: Kaita and her family were attacked in Bo Town in
1997. She moved to Freetown at that time, was attacked in
1999, and left for Guinea in 2002. That is a total of five years in
Freetown. From Guinea, Kaita came to the United States. There
are no “time gaps” in the testimony, certainly no significant
ones. Notwithstanding the IJ’s suggestion of confusion
regarding the five years Kaita spent in Freetown, the testimony
reveals that the five years Kaita spent living with her husband’s
family in Freetown included the time before and after the 1999
attack.
The IJ also stated that Kaita was not able “to provide
dates when significant events allegedly occurred,” A.R. at 81,
citing as examples the disappearance of Kaita’s husband and
Kaita’s hospitalization following being gang raped in a military
barracks. Although Kaita could not remember the month and
day that her husband disappeared, she clearly remembered that
the year was 1997. She said she could not remember the exact
date because it was so traumatic. We conclude that the exact
date of Kaita’s husband’s disappearance does not go to the heart
of her claims, see Gao, 299 F.3d at 272, which is her capture,
detention, and mistreatment by the rebels. In addition, there is a
great deal of confusion in the record in connection with the
timing issue. The IJ interrupted to question Kaita; the translator
was having trouble translating correctly; and either the translator
or Kaita apparently could not understand the IJ’s question, as
demonstrated by the question to the IJ, “what do you mean?”
following the IJ’s question regarding the exact date when the
husband disappeared. A.R. at 110.
With respect to the date of hospitalization, the IJ’s
conclusion that Kaita’s testimony “present[ed] additional
questions regarding the respondent’s credibility,” A.R. at 82, is
surprising. The IJ stated, “when [Kaita] testified about the rape
13
and being hospitalized, she indicated that she could not recall the
dates of her hospitalization or when these events in question had
precisely happened other than that they had happened some time
in 1999 because allegedly she was in such pain that she was
unable to recall the date.” A.R. at 82. The IJ then stated,
“[s]ubsequently when queried further, the respondent then
testified that she believed it was January 25th.” A.R. at 82.
But the IJ’s characterization of that testimony is not
accurate. What actually occurred was that the IJ interrupted
Kaita’s counsel to take over the questioning of Kaita with
respect to the 1999 incident. Then the IJ asked Kaita, “Okay,
ma’m, and then what, what, when was it that you were actually
in the hospital?” A.R. at 122. Kaita answered, “I can’t recall
because I was in pain.” A.R. at 122. The IJ asked, “Well, can
you recall after you were out of pain when that was?” A.R. at
123. At that point, Kaita stated, “When I was at the hospital
actually it was the first month the 25th.” A.R. at 123. The IJ
then said, “Proceed counsel, please, I’d like to wrap this up
now.” A.R. at 123.
Kaita never said that she could not recall any date at
which she was in the hospital; rather, she could not remember
when it was that she was in the hospital (i.e., when she entered
the hospital). But when asked if she remembered a date while in
the hospital after the pain subsided, Kaita readily provided a date
of January 25th. She never said she “believed” it was the 25th,
as the IJ characterized Kaita’s testimony; rather she clearly
stated that when she was out of pain, she was at the hospital on
January 25th. In this respect, the IJ’s conclusion is not
supported by substantial evidence because it relied upon a non-
accurate characterization of the record evidence. Moreover, the
exact date of Kaita’s hospitalization following her experience of
being brutally gang-raped does not go to the heart of Kaita’s
claim. It is the fact of having been gang-raped that does. Once
again, the IJ’s explanation is not a sufficient basis for making an
adverse credibility finding.
In further support of her conclusion that the timing issues
supported an adverse credibility finding, the IJ stated that “the
testimony provided by this respondent is at odds with her written
14
submissions and also at odds with her own testimony before the
Court.” A.R. at 81. Later in her decision, the IJ stated that
Kaita “[i]nitially” testified that she departed Sierra Leone on
March 29, 2003 and traveled to Conakry, Guinea, but
subsequently testified that she had obtained a passport on
December 23, 2002. A.R. at 82. The IJ stated that because
Kaita had also testified that she actually left Sierra Leone on
March 29, 2002, it would have been impossible for her to have
gotten a passport in Sierra Leone in December 2002 inasmuch as
Kaita never went back to Sierra Leone once she left. A.R. at 82.
A close reading of the testimony shows that Kaita
testified that she arrived in the United States in March 2003, and
that she had been in Guinea for three months prior to leaving for
the United States. That would have dated Kaita’s departure from
Sierra Leone to Guinea in December 2002. When asked by the
IJ if she left Sierra Leone for Guinea in December 2002, Kaita
said yes. That testimony is also consistent with the IJ’s later
questioning regarding the date when Kaita obtained the passport,
to which Kaita answered she obtained it in Sierra Leone in
December 2002, and then left Sierra Leone very soon after that.
Thus, most of Kaita’s testimony regarding the dates was
consistent. The fact that at one point during the complicated
recitation of dates Kaita stated that she left Sierra Leone in
March 2002 is a minor inconsistency that does not go to the
heart of her claims, especially in light of the IJ’s continued
interruption of the flow of Kaita’s testimony and the obvious
problems with the translation referred to above.
There are two other instances where the testimony
appears to be inconsistent, although they appear to have arisen
due to problems with the translation. For example, after already
answering that she departed Guinea for the United States in
March 2003 after being there for three months, Kaita testified
that she left Sierra Leone in the “two month, 29th, 2002.” A.R.
at 131. Then, when asked when she left Guinea, she said the “10
month the 15th.” But at that point both the IJ and Kaita’s
counsel began questioning the interpreter, and then the IJ said,
“he just said she left Guinea the 3rd month the 16th.” A.R. at
132. The IJ then asked the translator if that was correct (i.e.,
leaving Guinea in the third month) and the translator said yes.
15
The transcript of that entire dialogue is unclear and lacks the
indicia of reliability on which to base an adverse credibility
finding, particularly where another section of the transcript
reveals that Kaita’s dates may have been consistent. Moreover,
after carefully reviewing the transcript, we can find no instance
in which Kaita testified that she left Sierra Leone on March 29,
2002, contrary to the IJ’s statement in her oral opinion. The only
discrepancy about the date when Kaita left Sierra Leone is her
statement reported by the translator that she said she left the
“two month, the 29th.” A.R. at 131. Because Kaita had already
testified that she left Sierra Leone in December, i.e., the “twelve
month,” it seems highly plausible that when the translator said
“two month,” it was meant to be “twelve month.”
In fact, when the IJ clarified with Kaita, “And you left
Sierra Leone in December 2002, is that right?,” she responded,
“Yes, that’s when I left.” A.R. at 132. Kaita’s position is that
she was in Freetown from 1997 to December 2002, at which
time she obtained a passport and went to Guinea. Kaita
remained in Guinea for three months. Although Kaita stated that
she left for the United States in March 2003, the IJ and the BIA
concluded that was not proven.
In sum, Kaita’s omissions or so-called vagueness with
respect to the date of her husband’s disappearance and the date
of her hospitalization do not go to the heart of her claim. To the
extent that there are a few instances of apparently inconsistent
testimony, those instances may have been the result of either
translation problems or the IJ’s interruptions, and the IJ herself
clarified some of those inconsistencies during the testimony.
2. Contradictions/Lack of Details
The IJ also stated that she made an adverse credibility
finding due to the contradictions in Kaita’s testimony, but the
only examples she gave were those discussed above with respect
to timing. The IJ also stated that Kaita failed to provide
specifics about “what actually transpired to this respondent. . . .”
A.R. at 83.
That conclusion is unacceptable given the record before
16
the IJ. Kaita explained in great detail that she and her children
were beaten and their house was burned down, that she was
kidnapped by the RUF rebels and was taken to their barracks and
was forced to wash and launder for them, that she was raped by
one rebel after another on multiple occasions, and that on both
occasions (in 1997 and 1999) the rebels told her they were
targeting her due to her support of the SLPP/the presidential
government of Sierra Leone. Moreover, Kaita explained with
whom she was staying, what she did to earn a living, and what
was the status of her children at all times.
Moreover, the IJ’s statement that she would have liked to
have heard more detail is inconsistent with her frequent
interruptions of Kaita when Kaita attempted to provide such
detail, and the IJ’s obvious efforts to rush the proceedings by
continually reminding counsel about her 10:30 a.m. matter when
counsel was attempting to elicit more detail.
Finally, the IJ noted that Kaita’s testimony made no
reference to persecution on account of ethnicity. Persecution
need not be on account of ethnicity; it can also be on account of
political belief. Here, Kaita testified on multiple occasions that
she was singled out due to her membership in the SLPP and her
support for the elected president. Indeed, when Kaita’s counsel
asked her at the evidentiary hearing why the rebels had attacked
her, the IJ prevented her from answering by interrupting,
“Counsel, I’d like to find out what happened after this. I mean
she said they beat her, where was she?” A.R. at 116. After
Kaita provided an answer that is partially unintelligible on the
record copy of the transcript, the IJ interjected again and directed
the questioning of Kaita for some time regarding the issue of
where the rebels held her captive. The questioning never
returned to the topic why the rebels had attacked Kaita. The IJ’s
interruption seemingly frustrated what could have been an
opportunity for Kaita to elaborate on the basis for her
persecution claim. Moreover, there is some evidence that the
rebels referred to Kaita’s Mandingo ethnicity while she was
detained at their military barracks. The IJ’s decision does not
discuss any of that evidence, but rather summarily concludes that
there was no evidence of any ground of persecution.
17
For the reasons set forth, we conclude that the adverse
credibility finding made by the IJ and adopted by the BIA is not
supported by substantial evidence.
C. CAT Claim
To qualify for relief under Article 3 of the CAT, a
petitioner must show that “it is more likely than not that he or
she would be tortured” if returned to the proposed country of
removal. Zubeda, 333 F.3d at 471 (citation and internal
quotations omitted). This standard differs significantly from a
“reasonable fear of persecution” for asylum, because it has no
subjective component and requires the petitioner to establish
entitlement to relief on the basis of objective evidence. Id.
(citation and internal quotations omitted)
Unlike the asylum and withholding standards, a person
seeking protection under the CAT need not establish that she is a
“refugee,” and therefore need not prove that she was persecuted
due to any protected status. Rather, to state a claim under the
CAT, the applicant must show that she will more likely than not
be tortured. That standard has been applied when the
government is unwilling or unable to protect its citizens from
persecution. Silva-Rengifo v. Attorney Gen., 473 F.3d 58, 65 &
n.6 (3d Cir. 2007).
Torture is defined as:
an act by which severe pain or suffering, whether physical
or mental, is intentionally inflicted on a person for such
purposes as obtaining from him or her or a third person
information or a confession, punishing him or her for an
act he or she or a third person has committed or is
suspected of having committed, or intimidating or
coercing him or her or a third person, or for any reason
based on discrimination of any kind, when such pain or
suffering is inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other
person acting in an official capacity.
Zubeda, 333 F.3d at 472 (quoting 8 C.F.R. § 208.18(a)(1)). The
18
distinguishing feature of torture is the severity of pain inflicted.
Id. Rape can be torture. Id.
Kaita testified that she had been brutally beaten and raped
on multiple occasions by the RUF rebels who had, in effect,
taken over the government of Sierra Leone. But the IJ did not
consider the evidence, instead concluding that she had “failed to
present any evidence that would support a conclusion that it
would be more likely than not that she would be tortured if
removed to Sierra Leone.” A.R. at 84.
Neither the IJ nor the parties discussed the State
Department Country Reports for Sierra Leone. The Country
Report for 2001 explained that the elected government of Sierra
Leone did not effectively control the entire country that year, but
that the RUF rebels exercised de facto control over some areas
of the country. U.S. Department of State, Country Report on
Human Rights Practices (2001).8 The Report also stated that the
RUF rebels had abducted many women to use as “sex slaves,”
and that acts of violence and rape were prevalent. Id. The
Country Report for 2006, however, announced the return to
power of the democratically elected government, the SLPP, and
the decrease in power of the RUF rebels. See U.S. Department
of State, Country Report on Human Rights Practices (2006).9
The 2006 Report suggests that, although there are still some
serious problems in many areas of Sierra Leone, the country
conditions have greatly improved.
Neither the IJ’s decision nor the BIA’s decision refers to
country conditions as a factor in the analysis whether
circumstances have changed since the time of Kaita’s emigration
and subsequent petition in the United States. It may be that both
Kaita’s withholding of removal claim and CAT claim are
foreclosed due to changed circumstances in Sierra Leone. But
we cannot, as a court of appellate jurisdiction, consider the
Country Reports in the first instance. Rather, we must review
8
http://www.state.gov/g/drl/rls/hrrpt/2001/af/8402.htm.
9
http://www.state.gov/g/drl/rls/hrrpt/2006/78756.htm.
19
only that rationale provided by the IJ and BIA for their
decisions, namely that Kaita was not credible and that she
submitted no evidence to show that it is more likely than not that
she will be tortured if returned to Sierra Leone. See Li v.
Attorney Gen., 400 F.3d 157, 163 (3d Cir. 2005) (quoting SEC
v. Chenery Corp., 332 U.S. 194, 196 (1947) (“[A] reviewing
court, in dealing with a determination or judgment which an
administrative agency alone is authorized to make, must judge
the propriety of such action solely by the grounds invoked by the
agency. If those grounds are inadequate or improper, the court is
powerless to affirm the administrative decision by substituting
what it considers to be a more adequate or proper basis.”)).
IV.
The members of this court receive many petitions for
review and necessarily review numerous hearing transcripts.
The transcript in this case stands out because of the extent of the
IJ’s interruptions, frequently in what appears to be an
antagonistic manner. We recognize the burden under which the
immigration judges are working, but if the applicant, aided by
counsel, is unable to complete his or her testimony, our review is
seriously impeded. This is such a case. We venture no view as
to whether Kaita is entitled to withholding of removal or
protection under the CAT. We leave that decision to the agency.
For the reasons set forth above in some detail, we will
vacate the adverse credibility decision of the BIA and IJ on the
basis that the asserted inconsistencies and omissions are minor
and do not go to the heart of Kaita’s claims, and that the IJ’s
adverse credibility finding is not supported by substantial
evidence. We will also vacate the decisions of the BIA and IJ
concluding that Kaita submitted no evidence of likely torture if
returned to Sierra Leone. We will remand for further
proceedings consistent with this opinion, including additional
testimony before the IJ if necessary, as well as full consideration
of the current status in Sierra Leone as reflected in the State
Department Country Report.
We will deny Kaita’s petition with respect to the asylum
claim. We will grant the petition with respect to the withholding
20
and CAT claims and remand for further proceedings consistent
with this opinion.
21