Georgis, Haile v. Ashcroft, John ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-2786
ZEBENEWORK HAILE GEORGIS,
Petitioner,
v.
JOHN ASHCROFT, United States Attorney General,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals
No. A75 310 383
____________
ARGUED APRIL 1, 2003—DECIDED MAY 20, 2003
____________
Before FLAUM, Chief Judge, and COFFEY and EVANS,
Circuit Judges.
FLAUM, Chief Judge. Petitioner Zebenework Haile
Georgis seeks review of a final order of the Board of Im-
migration Appeals (“BIA”) denying her petitions for asy-
lum and withholding of deportation and ordering her re-
moval from the United States to Ethiopia, where she is a
citizen. An Immigration Judge (“IJ”) determined that
Georgis’s claims of racial and political opinion discrimina-
tion in Ethiopia did not merit asylum because they were not
“internally consistent” and “inherently persuasive.” Georgis
appealed and the BIA affirmed the IJ’s decision without
opinion pursuant to 8 C.F.R. § 1003.1(a)(7). We vacate the
removal order and remand for further proceedings.
2 No. 02-2786
I. BACKGROUND
Georgis, a native and citizen of Ethiopia, entered the
United States in June 1995 on a non-immigrant visitor’s
visa. In July 1997 the Immigration and Naturalization
Service (“INS”) issued Georgis a Notice to Appear, charging
her under § 237(a)(1)(B) of the Immigration and Nationality
Act (“INA”), 8 U.S.C. § 1227(a)(1)(B), with overstaying her
visa. Georgis conceded removability as charged but re-
quested asylum under INA § 208, 8 U.S.C. § 1158, and
withholding of deportation under INA § 241(b)(3), 8 U.S.C.
§ 1231(b)(3), as relief from removal. In her application
Georgis claimed that since 1996 the Ethiopian government
had been arresting and persecuting members of the Am-
haric ethnic and political group, including Georgis’s hus-
band, Afework Mulat (“Afework”), and three of her children.
Georgis further alleged that government soldiers had inter-
rogated her family and inquired as to her whereabouts, and
that Afework and one son remained in jail because they be-
long to the All-Amhara People’s Organization (“AAPO”), a
political group opposing the Ethiopian government. Georgis
herself had been a member of the AAPO when she was in
Ethiopia and currently belonged to an AAPO support group
in Chicago, Illinois. Georgis expressed her belief that she
would be arrested and jailed for her AAPO membership if
she were forced to return to Ethiopia.
At the hearing on her asylum claim, Georgis testified that
she first came to the United States in 1991 to get medical
treatment for one of her sons. She returned to Ethiopia in
1993 and began participating in AAPO activities in Addis
Ababa, raising funds as well as organizing the women’s
wing of the party. Soon thereafter, in September 1993,
Georgis and Afework were arrested along with several other
AAPO members for protesting the earlier arrest of their
party leader, Professor Asrat Woldeyes. Georgis and
Afework were then taken to prison, beaten up, subjected to
various forms of maltreatment and torture, including the
No. 02-2786 3
shaving of their heads, and detained for a day and a half.
Georgis also claimed that her uncle, who was second in
command to Professor Woldeyes, was killed as a result of
the demonstration.
On cross-examination Georgis acknowledged that she had
failed to mention her September 1993 arrest in her asylum
application but claimed that it was because it “didn’t count
as imprisonment. In my mind what imprisonment I thought
that it’s in the central prison for longer terms and all that.
That’s why I didn’t really mention it.” She also maintained
that she did not refer to the arrest in response to Item No.
4 of the application, which asked for a specific discussion of
each incident of mistreatment encountered by Georgis or
her family, because “it is a short term and short time, I
thought it was not much relevance for the case.” When
questioned further, Georgis explained that the “reason I
didn’t mention it is because it’s a past case. I didn’t thought
that it’s going to help my case. I thought that the current
situation that I have, my children’s and my husband pro-
blem, that’s what I emphasized it more than what hap-
pened to me.”
Georgis further testified that she returned to the United
States in 1995 following a call from her son’s hospital. After
she arrived, she received a letter from Afework stating that
many of their friends had been arrested and “that he [was]
not in a stable condition in Ethiopia.” This letter was not
submitted as evidence. Georgis also claimed to have later
received a letter from her daughter Haregwine stating that
Afework had been arrested and “terribly beaten on his
face,” but this letter was not submitted as evidence either.
Georgis testified, however, that the letter said that Afework
had been arrested in January 1996. The letter also al-
legedly stated that Haregwine and two of Georgis’s other
children, daughter Frehiwot and son Minase, had been
arrested; that Haregwine had been raped by a prison guard
while she was detained; and that the whereabouts of
4 No. 02-2786
Minase were unknown. On cross-examination Georgis was
questioned about the inconsistency between her testimony
that Afework had been arrested in January 1996 and her
asylum application, which stated that the arrest occurred
in October 1996. In response, Georgis explained that the
discrepancy was due to the differences between the Grego-
rian and Ethiopian calendars;1 because of these differences,
she had “made a mistake on the—in the calendars that I
said in my language. So it should be October 24 . . . 1996.”
Another letter from Georgis’s daughter Frehiwot was sub-
mitted into evidence. According to the letter, Afework had
not been released after his arrest in October 1996 but was
still being detained in the central prison. Georgis initially
testified that this letter had been sent “around the begin-
ning of the November of 1996,” which was around the time
her family had been arrested, but she later stated that the
letter was sent four months after the arrest. On re-direct
Georgis confirmed that the letter was dated “16-1-90,” but
that date, she said, is “in the Ethiopian calendar.” She did
not know what the corresponding date was under the
Gregorian calendar.2
1
Ethiopia uses a Julian calendar which is divided into 12 months
of 30 days each plus a 13th month of five or six days (depending
on whether it is a leap year) at the end of the year. The beginning
of the Ethiopian new year occurs each September 1, which equates
with September 11 in the Gregorian calendar (our modern
western calendar). The Ethiopian calendar is approximately seven
years, eight months, and several days behind the current Grego-
rian calendar, and dates are recorded as day-month-year in the
European fashion (as compared with month-day-year in common
American usage). For example, our April 1, 2003 (4-1-03), is March
23, 1995 (23-7-95), on the Ethiopian calendar.
2
The translator recorded the Ethiopian date of 16-1-90 as the
Gregorian date of September 22, 1997, but according to at least
(continued...)
No. 02-2786 5
In a November 1997 decision, the IJ denied Georgis’s ap-
plication for asylum and withholding of deportation, while
granting her voluntary departure. The IJ stated that he
“examined [Georgis’s] application in concert with her testi-
mony and . . . found numerous discrepancies.” The IJ then
made six “observations” in support of his conclusion: (1)
Georgis did not mention the events of September 1993 in
her asylum application; (2) Georgis’s testimony that she
was arrested at the trial of Professor Woldeyes on Septem-
ber 20, 1993, “appear[ed] to be in conflict with the informa-
tion contained in [a] State Department opinion indicating
that Professor Woldeyes was convicted on June 27, 1994”;
(3) Georgis’s application stated that her husband was ar-
rested in October 1996, but she “specifically testified that it
took place on January 24, 1996 (although later recanted)”;
(4) Georgis’s application indicated that her son Minase was
still in jail, but at the hearing “her testimony was that his
whereabouts are unknown”; (5) Georgis testified that the
letter from her daughter Frehiwot “was mailed approxi-
mately four months after her arrest in November 1996,” but
“this appears unlikely . . . since the document submitted is
dated September 22, 1997”; and (6) the “record does not
2
(...continued)
one other source (a calendar conversion tool provided online by
Douglas Zongker, a Ph.D. candidate in Computer Science and
Engineering at the University of Washington, available at
http://www.cs.washington.edu/homes/dougz/date/),the
correct Gregorian date is September 26, 1997. Given that Septem-
ber 1 in the Ethiopian calendar is September 11 on the Gregorian
Calendar, there should be a gap of ten days between the dates and
not just six, meaning the translator’s date may be erroneous. We
note that this confusion over dates permeated the proceeding
before the IJ and persists even on appeal. We found nothing in the
record—no expert testimony or other authoritative refer-
ence—that definitively converts and fixes any of the dates referred
to by Georgis in her application and testimony.
6 No. 02-2786
contain corroborative or supporting evidence relating to the
respondent’s alleged AAPO membership, the political activ-
ities or arrests of the respondent or her relatives, or her
husband’s alleged detention.”
As to this last point, the IJ noted that Georgis had
attempted to submit a copy of a letter from the Ethiopian
Transitional Government Second Police Station that she
said corroborated the facts and circumstances of her hus-
band’s arrest. But because the letter was not submitted
until the day of the hearing, see Immigration Court of
Chicago Local Operating Procedure 2 (“All proposed exhibits
and briefs shall be received in the Immigration Court of
Chicago no later than ten (10) calendar days prior to the
scheduled Individual Calendar hearing unless otherwise
authorized by the Immigration Judge”), was not certified,
see 8 C.F.R. § 287.6,3 and an extra copy of the translation
was not provided for the government, the IJ excluded it
from evidence. At the hearing, however, Georgis’s lawyer
explained that he did not submit the letter earlier because
he had just received it from Ethiopia and that time con-
straints prevented him from obtaining an extra copy of the
translation for the government’s lawyer. With no objection
from the government, the IJ accepted the letter into the
record for identification purposes only and labeled it
“Exhibit 4.”
3
Section 287.6 requires that official records from foreign coun-
tries be certified (in the form of an official publication or a copy at-
tested to by an authorized foreign officer) in order to be admissible
for any purpose. Since the IJ did not elaborate on his reasons for
deciding the letter from the Ethiopian Transitional Government
Second Police Station failed to meet the requirements of § 287.6,
it remains unresolved whether the letter is even an “official rec-
ord” that demands certification and also whether the submitted
copy is not already properly certified (it appears to be imprinted
with an official seal of some sort).
No. 02-2786 7
In June 2002 a single Member of the BIA determined that
there was no reasonable possibility that the IJ’s decision
was incorrect and issued a “streamlined” order summarily
affirming the decision. See 8 C.F.R. § 1003.1(a)(7). Georgis
filed a timely petition for review in this court.
II. DISCUSSION
A. BIA’s Streamlined Review Procedure
Georgis contends that the BIA abdicated its responsibility
to review the IJ’s ruling when it employed its streamlining
procedure in her case. See 8 C.F.R. § 1003.1(a)(7). This reg-
ulation provides that a single Member of the BIA may
affirm, without opinion, the results of an IJ’s decision if the
Member determines: (1) that the result reached in the deci-
sion under review was correct; (2) that any errors in the de-
cision under review were harmless or nonmaterial; and (3)
that (A) the issue on appeal is squarely controlled by exist-
ing Board or federal court precedent to a novel fact situa-
tion; or (B) the factual and legal questions raised on appeal
are so insubstantial that three-Member review is not war-
ranted. Id. If a case is streamlined, the IJ’s decision be-
comes that of the BIA for purposes of judicial review. Cf.
Begzatowski v. INS, 278 F.3d 665, 670 (7th Cir. 2002) (court
of appeals does not directly review decisions of the IJ,
except in cases where the BIA has expressly adopted the
IJ’s findings).
The government maintains that the BIA’s decision to
exercise its streamlining authority is not reviewable under
the APA because it is an action that “has been committed to
the absolute discretion of an agency.” See 5 U.S.C.
§ 701(a)(2); ICC v. Brotherhood of Locomotive Engineers,
482 U.S. 270 (1987); Heckler v. Chaney, 470 U.S. 821(1985). Without explicitly deciding this issue, we have
upheld the BIA’s use of the streamlining procedure in a
8 No. 02-2786
case whose facts presented no substantial issue of law and
no basis for granting asylum. Ciorba v. Ashcroft, 2003 WL
1400572, at *5 (7th Cir. March 21, 2003). Additionally, the
First Circuit recently held that the streamlining procedure
on its face neither violates due process, renders judicial re-
view impossible, nor runs afoul of any statute. Albathani v.
INS, 318 F.3d 365, 377 (1st Cir. 2003). For our purposes
here (and in many cases it seems), it makes no practical dif-
ference whether the BIA properly or improperly stream-
lined review of Georgis’s case.4 Since we review directly the
decision of the IJ when a case comes to us from the BIA
pursuant to § 1003.1(a)(7), our ability to conduct a full and
4
Assume, for instance, that the IJ’s ruling was not supported by
substantial evidence. Then, the BIA should not streamline the
case because “the result reached in the decision under review was
[not] correct.” 8 C.F.R. § 3.1(a)(7). But if it did streamline, and the
case came up to us on a petition for review, the substance of our
review would be the same regardless of whose decision (the BIA’s
or the IJ’s) we consider. Cf. Brotherhood of Locomotive Engineers,
482 U.S. at 279 (agency’s refusal to reopen a proceeding is not re-
viewable where only “material error” has been alleged as the basis
for reopening; the appeal would place “before the courts precisely
the same substance that could have been brought there by appeal
from the original order [but] on the strange, one-step-removed
basis of whether the agency decision is not only unlawful, but so
unlawful that the refusal to reconsider it is an abuse of discre-
tion”).
Consider, on the other hand, a case that is not “controlled by
existing Board or federal court precedent”; for instance, a case in-
terpreting a new regulation. If the BIA (improperly) streamlined
that case, which then came before us on appeal, it could make a
slight difference whose decision we review. If we look at the IJ’s,
we would decide the legal issue on the merits. But if we look at
the BIA’s, we would simply say that the case should have been
considered by a three-Member panel and remand to the BIA for
consideration. And this latter course seems preferable because it
gives the BIA the first crack at interpreting its own rules.
No. 02-2786 9
fair appraisal of the petitioner’s case is not compromised,
and the petitioner’s due process rights are not violated.
B. Georgis’s Petition for Asylum and Withhold-
ing of Deportation
We review decisions of the immigration courts to deny
petitions for asylum and withholding of deportation for sub-
stantial evidence. Ambati v. Reno, 233 F.3d 1054, 1059 (7th
Cir. 2000). We must affirm the BIA’s decision if it is
supported by “reasonable, substantial, and probative evi-
dence on the record considered as a whole,” Useinovic v.
INS, 313 F.3d 1025, 1029 (7th Cir. 2002), and we are not at
liberty to overturn the agency’s determination “simply
because [we] would have decided the case differently,”
Yadegar-Sargis v. INS, 297 F.3d 596, 601 (7th Cir. 2002).
Only where the evidence in support of the application is “so
compelling that no reasonable fact-finder could fail to find
the requisite fear of persecution” will we reverse the Board’s
decision for lack of evidence. INS v. Elias-Zacarias,
502 U.S. 478, 484 (1992). While our review of the IJ’s
credibility determinations is highly deferential, Nasir v.
INS, 122 F.3d 484, 486 (7th Cir. 1997), we will not automat-
ically yield to the IJ’s conclusions when they are drawn
from insufficient or incomplete evidence.
In this case the IJ denied Georgis’s request for asylum
and withholding of deportation because he found her claims
incredible due to “numerous discrepancies” in her asylum
application and her hearing testimony. The IJ gave six rea-
sons for his conclusion that Georgis’s claims were neither
“internally consistent” nor “inherently persuasive,” quoted
several passages from the State Department’s generalized
profile of asylum applications and country conditions in
Ethiopia for 1997, and summarily denied Georgis’s request
for asylum or withholding of deportation. Of the six reasons
given by the IJ, three specifically relate to discrepancies in
10 No. 02-2786
dates that Georgis explained at the hearing were due to her
unfamiliarity with our calendar versus the Ethiopian calen-
dar; one involves the specificity and extent of Georgis’s
knowledge of her son’s whereabouts; one concerns the lack
of corroborating or supporting evidence relating to Georgis’s
AAPO membership, her and her family’s political activities
and arrests and persecution by the Ethiopian government,
and her husband’s arrest and prolonged imprisonment; and
one addresses Georgis’s failure to discuss the events re-
lating to her 1993 arrest at the trial of Professor Woldeyes
in her asylum application.
In the context of the entire administrative record, these
six reasons alone are insufficient to support the IJ’s de-
cision to discredit Georgis’s testimony. On appeal Georgis
argues, and the government acknowledges, that at least
four of the IJ’s given reasons are minor inconsistencies
which are easily resolved by other facts in evidence. For in-
stance, the IJ found Georgis’s testimony that she was ar-
rested “at the trial of Professor Woldeyes on September 20,
1993,” to be inconsistent with the State Department’s report
“that Professor Woldeyes was convicted on June 27, 1994.”
But obviously, the time of trial is different from the time of
conviction, and the government admits that the record does
not indicate when Professor Woldeyes’s trial began or
ended. The IJ also found the statement in Georgis’s applica-
tion that “her son Minase is still in jail” to be inconsistent
with her later testimony “that his whereabouts are un-
known.” We are not convinced these statements are incon-
sistent, but even if they are, the government concedes that
Georgis seemed to have believed when she submitted her
application that Minase was in jail but was later informed
by her daughter Frehiwot that his whereabouts were un-
known. Finally, the IJ’s reliance on Georgis’s “inconsistent”
testimony regarding various dates, including the date of her
husband’s arrest and the date of a letter written by her
daughter Frehiwot, is unconvincing given that Georgis
No. 02-2786 11
repeatedly expressed her confusion regarding the differ-
ences between the Ethiopian and Gregorian calendars. The
transcript of the hearing reveals that everyone, and not just
Georgis, seemed unclear about converting the dates from
Ethiopian to Gregorian. Moreover, each time Georgis was
asked to clarify a date, she tried to place the event in ques-
tion in its proper chronology even if she could not calculate
the correct date in our calendar system.
We agree with Georgis’s assertion and the government’s
concession that these four inconsistences should be treated
as minor. Thus, of the six reasons why the IJ found Georgis
not credible, there remain two that we must review for sub-
stantial evidence. One is that the record did not “contain
corroborative or supporting evidence relating to the respon-
dent’s alleged AAPO membership, the political activities or
arrests of the respondent or her relatives, or her husband’s
alleged detention.” We do not find this explanation persua-
sive for a number of reasons. As an initial matter, it is not
necessary for an asylum applicant to submit corroborating
evidence in order to sustain her burden of proof. 8 C.F.R.
§ 208.13(a) (“The testimony of the applicant, if credible,
may be sufficient to sustain the burden of proof without
corroboration.”).
More importantly, however, Georgis did submit corrobo-
rating evidence. The IJ received into evidence and marked
as “Exhibit 2” a translated version of Frehiwot’s letter,
which stated that Afework had not been released following
his arrest but remained in the central prison. Also submit-
ted by Georgis and included as Exhibit 2 was a letter from
the chairperson of the AAPO Support Group in Chicago,
Illinois, confirming that Georgis was an active member in
the organization. Further, Georgis attempted to submit a
letter from the Ethiopian Transitional Government Second
Police Station that corroborated the facts related to
Afework’s arrest, but the IJ excluded the letter because it
was not submitted in advance of the hearing date, was not
12 No. 02-2786
properly certified, and because no translation was provided
with the Government’s copy of the document (although a
translation was provided to the IJ and the government had
access to it). As discussed earlier, we are uncertain whether
the letter qualifies as an “official record” within the mean-
ing of 8 C.F.R. § 287.6, but even if it does, § 287.6 is not the
only way that Georgis could authenticate the document. See
Khan v. INS, 237 F.3d 1143, 1144 (9th Cir. 2001) (“docu-
ments may be authenticated in immigration proceedings
through any recognized procedure, such as those required
by INS regulation or by the Federal Rules of Civil Proce-
dure”). In Khan the Ninth Circuit held that it was error to
exclude documents verifying the petitioner’s testimony that
he had been arrested and detained for lack of certification
when the denial of asylum was based in part on the lack of
corroborating evidence. Id. at 1144. Here, under nearly
identical factual circumstances, we agree with the Ninth
Circuit that it was error for the IJ to exclude the letter from
the Ethiopian Transitional Government Second Police
Station since the IJ expressly stated that it was for lack of
corroborating evidence like this letter that he found Georgis
not credible and denied her asylum application.
The remaining reason why the IJ discredited Georgis’s
claims was that her asylum application did not mention
that she had been arrested and beaten in September 1993
for demonstrating in support of Professor Woldeyes, nor did
it mention that her uncle had been killed due to those dem-
onstrations. Specifically, Item 4 of the application asked
whether Georgis “or any member of [her] family [had] ever
been mistreated/threatened by the authorities.” Item 5 then
asked if Georgis “or any member of [her] family [had] ever
been arrested, detained, interrogated, convicted and sen-
tenced, or imprisoned.” While citing other, more recent ex-
amples of the persecution of her family members by the
Ethiopian government, Georgis did not mention the Sep-
tember 1993 events in response to either of these ques-
No. 02-2786 13
tions. At her hearing Georgis explained that the reason she
did not mention the 1993 arrest in response to Item No. 5
was because she did not believe that “the incident would
count as imprisonment. In my mind what imprisonment I
thought that it’s in the central prison for longer terms and
all that. That’s why I didn’t really mention it.” She further
explained that she did not bring up the incident in response
to Item No. 4 because “it is a short term and short time, I
thought it was not much relevance for the case. . . . I didn’t
mention it is because it’s a past case. I didn’t thought that
it’s going to help my case. I thought that the current situa-
tion that I have, my children’s and my husband problem,
that’s what I emphasized it more than what happened to
me.” The IJ thought that this explanation did “not appear
to be an adequate justification for failing to include an
incident which could be viewed as past persecution.”
Although we consider Georgis’s reasons plausible, we
recognize that it is the role of the IJ and not this reviewing
court to decide whether her explanation justified her omit-
ting the incident from her asylum application. However,
having found that the other five reasons given by the IJ for
discrediting Georgis are either unsupported by the evidence
in the record or based on incomplete or improperly excluded
evidence, we are not inclined to defer to his credibility de-
termination on this remaining sixth ground alone.
III. CONCLUSION
We therefore VACATE the deportation order and REMAND
for further proceedings in accordance with this opinion.
Although the choice of a presiding judge is left to the dis-
cretion of the BIA, we strongly urge the BIA to assign a
different judge to Georgis’s case on remand. Cf. Circuit Rule
36 of the United States Court of Appeals for the Seventh
Circuit. See also Kerciku v. INS, 314 F.3d 913, 919 (7th Cir.
2003).
14 No. 02-2786
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-20-03