Tolosa, Hiwot G. v. Ashcroft, John D. ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1937
HIWOT G. TOLOSA,
Petitioner,
v.
JOHN ASHCROFT, Attorney General
of the United States,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A77-837-139
____________
ARGUED MAY 20, 2004—DECIDED OCTOBER 4, 2004
____________
Before COFFEY, ROVNER, and EVANS, Circuit Judges.
ROVNER, Circuit Judge. Hiwot Tolosa, an Ethiopian citi-
zen of Oromo descent, petitions for review of a final order of
removal issued by the Board of Immigration Appeals (“BIA”)
denying her application for asylum and withholding of
removal. Tolosa and her sister left Ethiopia after their father
had fled to Kenya and their mother, of Eritrean descent,
had been deported to Eritrea. Because the immigration
judge (“IJ”) erroneously discredited Tolosa and failed to
acknowledge evidence in the record supporting her claim, we
remand for further proceedings.
2 No. 03-1937
I.
Tolosa arrived in the United States in August 1999. That
December she applied for asylum, 8 U.S.C. § 1158, with-
holding of removal, 8 U.S.C. § 1231(b)(3), and relief under
the United Nations Convention Against Torture on the basis
of treatment she and her family had endured in Ethiopia on
account of their Oromo ethnicity. Although Tolosa’s mother
is Eritrean, her father is Oromo and so she and her siblings
are considered Oromo. Oromos make up approximately 40%
of the population of Ethiopia, but have historically been pol-
itically marginalized, and the Ethiopian government has
rejected their attempts for independence. Tolosa conceded
removability in response to a notice to appear from the
Immigration and Naturalization Service, and in September
2000 the IJ held a hearing to evaluate Tolosa’s claim.
At the hearing, Tolosa explained that her father had
served as a colonel in the Ethiopian army before fleeing the
country in early 1994. His military service had begun under
emperor Haile Selassie, whose reign lasted from 1941 until
1974. Tolosa’s father continued in the military until he was
forced to leave in 1986 or 1987, during the final years of the
14-year rule of Marxist dictator Colonel Mengistu Haile
Mariam. Tolosa testified that her father was forced out of
the military because he is Oromo.
In 1991, the Ethiopian People’s Revolutionary Democratic
Front (“EPRDF”) ousted Mengistu. Tolosa testified that early
one morning the following year, armed EPRDF soldiers
arrived at their home and took her father away for what
they said would be fifteen minutes of questioning. He did
not return until two months later. A year later, he was again
taken away for questioning, and this time was detained for
six months. He was not charged with a crime on either
occasion and apparently did not tell his family why he was
detained or how he was treated. Both times upon his re-
lease, security forces monitored him and his whereabouts.
No. 03-1937 3
After being released the second time, he fled to Kenya. Tolosa
presumed that the reason the government monitored and
detained her father was because he is Oromo.
After the father’s departure, EPRDF soldiers watched the
family and repeatedly detained and interrogated them
about his whereabouts. Tolosa testified that during these
interrogations soldiers beat and slapped her, and that the
first time it happened she was knocked nearly unconscious
and feared that she had been blinded. The interrogations
continued intermittently for about six months, until July
1998 when Tolosa’s Eritrean mother was taken from their
home and deported to Eritrea. This occurred as part of the
border conflict between Ethiopia and Eritrea, at a time when
many Ethiopian Eritreans were rounded up and deported.
No one has heard from her since.
The family’s trauma continued. Several months after
Tolosa’s mother was deported, a local government security
officer forced his way into the home in the middle of the night
and raped Tolosa’s sister and stole her jewelry while other
officers restrained the rest of the family in an adjacent
room.
Shortly thereafter Tolosa and her sister sold all of their
belongings and fled to Somalia, where they soon boarded a
boat to Saudi Arabia. In Saudi Arabia, Tolosa’s uncle helped
her obtain work as a nanny for a wealthy family. Tolosa ac-
companied the family on their vacation to Canada and
Buffalo, NY, where she hid and, with a friend’s help, pro-
ceeded on to Maryland. Some time later, a cousin, Tekle
Walde Gabriel, bought Tolosa a train ticket to join him in
Chicago.
Gabriel testified at the hearing and corroborated Tolosa’s
story. Gabriel, who is Eritrean, testified that Tolosa’s father
“sympathized with the Oromo’s right for self preservation”
and their “quest for equity in the political and economic
activities in the country.” Gabriel explained that the EPRDF
was hostile towards Ethiopians who were suspected to be
4 No. 03-1937
Oromos and their desire for independence; according to
Gabriel, the government would have perceived Tolosa’s father,
a former military member, to be particularly dangerous. At
the hearing the government suggested that Tolosa’s father’s
arrests and detentions may have been due to his role in per-
petuating human rights abuses under Mengistu’s regime and
not his Oromo ethnicity. Gabriel rejected such a scenario,
explaining that unlike Tolosa’s father, those suspected of
abuses were members of the “Derg” political party in power
during Mengistu’s regime. Additionally, Tolosa’s father’s
arrest coincided with what Gabriel described as the EPRDF
government’s campaign to harass and arrest Oromo intel-
lectuals and leaders. Gabriel believed that Tolosa’s father
supported the Oromo cause, but could not say whether he
belonged to the Oromo Liberation Front (“OLF”), the pol-
itical opposition group that seeks “self-determination” for
the Oromos.
After considering Tolosa’s evidence, the IJ found her ineli-
gible for asylum or withholding of removal. The IJ first
noted that Tolosa did “not advance[ ] a completely credible”
claim for two reasons: first, her asylum application failed to
include her story about the interrogations and beating she
endured after her father’s departure to Kenya, and second,
she testified inconsistently at the hearing about the soldiers
who took her father into custody, at times misidentifying
them as members of the “EPLF,” the acronym for the Eritrean
People’s Liberation Front, another political organization un-
related to Tolosa’s claim. Leaving aside his concerns about
Tolosa’s credibility, however, the IJ concluded that she was
not entitled to asylum because she had not established past
persecution or a well-founded fear of future persecution on
account of her Oromo heritage. Finally, the IJ denied
Tolosa’s request for withholding of removal because she had
necessarily failed to meet the heavier burden of showing it
was more likely than not that she would be persecuted if
returned to Ethiopia. The BIA affirmed the IJ’s decision
without opinion.
No. 03-1937 5
II.
Because the BIA affirmed without opinion, this court re-
views the IJ’s decision directly to determine if substantial
evidence supports it, e.g., Oforji v. Ashcroft, 354 F.3d 609,
612 (7th Cir. 2003), and must affirm if the decision is “sup-
ported by reasonable, substantial, and probative evidence
on the record considered as a whole,” INS v. Elias-Zacarias,
502 U.S. 478, 481 (1992). To qualify for asylum, Tolosa bore
the burden of showing that she suffered past persecution or
has a well-founded fear of future persecution on account of
her race, religion, nationality, membership in a particular
social group, or political opinion. 8 U.S.C. § 1101(a)(42)(A);
Ememe v. Ashcroft, 358 F.3d 446, 450 (7th Cir. 2004).
A petitioner’s experience of past persecution gives rise to a
rebuttable presumption that she will face future persecu-
tion. 8 C.F.R. § 208.13(b)(1)(i); see, e.g., Oforji, 354 F.3d at
613.
Tolosa first argues that the IJ erroneously discredited her
testimony. She claims that the reasons the IJ gave for
discrediting her—that in her asylum application she failed
to describe the interrogations she endured after her father’s
departure and that she misidentified the soldiers who took
her father as members of the EPLF instead of the governing
EPRDF—are not supported by the record. This court gives
great deference to an IJ’s credibility determinations, which
will be overturned only in “extraordinary circumstances” as
long as they are supported by “cogent reasons” that “bear a
legitimate nexus to the finding.” See Krouchevski v.
Ashcroft, 344 F.3d 670, 673 (7th Cir. 2003) (citation and
internal quotations omitted). Adverse credibility determina-
tions unsupported by evidence in the record, however, are
reversible. See Uwase v. Ashcroft, 349 F.3d 1039, 1042-43
(7th Cir. 2003); Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.
2002).
The IJ’s claim that Tolosa’s asylum application did not
mention her interrogations is contradicted by the applica-
6 No. 03-1937
tion itself. In it she recounted that after her father left,
authorities brought her “to the station . . . grilled [her] for
hours, . . . call[ed] [her] in a demeaning way as a bastard of
Oromo and Eritrea, and slapped [her] in [her] face and
threatened [her] with further violence.” Thus, the supposed
discrepancy between Tolosa’s application and her testimony
does not exist—both in her application and at her hearing
she described being detained, interrogated, and beaten by
authorities curious about her father’s whereabouts. See
Korniejew v. Ashcroft, 371 F.3d 377, 386 (7th Cir. 2004)
(noting “increasing reliance by the BIA and IJs upon per-
ceived inconsistencies in testimony”) (emphasis in original).
While Tolosa may have testified at the hearing in more de-
tail than in her application, such a minor discrepancy is in-
sufficient to warrant discrediting her testimony. See Uwase,
349 F.3d at 1042-43. In short, the IJ’s finding that Tolosa’s
story was incredible because her asylum application did not
include information about her interrogations has no support
in the record and thus cannot be upheld. See id. at 1042-43;
Gao, 299 F.3d at 272.
Likewise, Tolosa’s isolated references to “EPLF” instead
of “EPRDF” do not provide a cogent reason to discredit her.
It is true that several times during the hearing she referred to
the “EPLF,” but she clarified that she was referring to the
“military of the government,” which in fact was the EPRDF.
She also properly identified the officers who took her father
from their home as “EPRDF soldiers.” The IJ overstated the
significance of the EPLF references; regardless of whether
they are attributed to a mistranslation or a simple mistake,
they do not justify rejecting Tolosa’s otherwise consistent
testimony. See Georgis v. Ashcroft, 328 F.3d 962, 968 (7th
Cir. 2003); Uwase, 349 F.3d at 1042-43; Ememe, 358 F.3d at
452-53; see also Korniejew, 371 F.3d at 387 (“[A]dverse
credibility determinations should not be grounded in trivial
details or easily explained discrepancies.”).
No. 03-1937 7
Notwithstanding our rejection of the IJ’s credibility determi-
nation, Tolosa still must confront the IJ’s purportedly inde-
pendent conclusion that even if her testimony were credible,
she did not prove past persecution or a well-founded fear of
future persecution “on account of” her Oromo ethnicity. The
petitioner bears the burden of demonstrating persecution
motivated by one of the protected grounds—in Tolosa’s case,
her Oromo ethnicity. See Elias-Zacarias, 502 U.S. at 481;
Tamas-Mercea v. Reno, 222 F.3d 417, 425-26 (7th Cir.
2000). Tolosa contends, and we agree, that the IJ over-
looked evidence in the record tying both her own and her
father’s treatment to their Oromo ethnicity. The IJ noted
that it was not “all together clear from the evidence” that
Tolosa’s father was detained because he is Oromo. Instead
the IJ speculated that the father may have been detained
because he participated in human rights abuses during his
military service under Mengistu, “or for other reasons” (we
are left to guess as to what those reasons would be). But
once the IJ accepted Gabriel’s testimony as “completely
credible” he could not discount Gabriel’s view that Tolosa’s
father was detained as part of the EPRDF government’s cam-
paign to harass and arrest Oromo intellectuals and leaders.
Nor could the IJ ignore Gabriel’s testimony that the arrests
could not be attributed to Tolosa’s father’s military service
because he was not a member of the “Derg”—the political
party suspected of human rights abuses under Mengistu.
The IJ also failed to address other evidence in the record
linking Tolosa and her family’s treatment to their Oromo
ethnicity. First, in her asylum application Tolosa details the
interrogations after her father left for Kenya and explains
that authorities asked her mother if her father had joined
the OLF. Her application also recounts that the questions
the soldiers directed at her and her siblings “were very hu-
miliating and insulting to our ethnic origin.” And the ap-
plication describes how one interrogator called her “in a
demeaning way as bastard of Oromo and Eritrea.” The IJ
8 No. 03-1937
failed to acknowledge these details, an oversight that is
unsurprising given his erroneous statement in his credibil-
ity finding that Tolosa never mentioned the interrogations
in her application. Moreover, at the hearing Tolosa testified
that government interrogators questioned her about the
OLF and accused her of wanting to overthrow the govern-
ment. This testimony, also ignored by the IJ, suggests that
government officials imputed her father’s support for the
rights of the Oromo to her. See Ahmed v. Ashcroft, 348 F.3d
611, 617 (7th Cir. 2003) (asylum applicant may show that
persecutor imputed a political opinion to her).
Given this evidence in the record, we cannot countenance
the IJ’s conclusion that Tolosa failed to demonstrate
persecution on account of her ethnicity. We are also at a
loss to understand the IJ’s reliance on certain irrelevant
considerations to buttress his conclusion—that, for in-
stance, Tolosa had not proven that she or her family were
“persecuted during the regime of either Haile Selassie or
Mengistu” (both she and Gabriel testified that it is the
EPRDF government that is hostile to the Oromo), and that
she had not “adequately addressed the issue of internal
relocation.” The significance of these supposed shortcomings
eludes us and further undermines our confidence in the IJ’s
decision. See Niam v. Ashcroft, 354 F.3d 652, 657 (7th Cir.
2004) (vacating and remanding when IJ’s errors “deprive[d]
the order of removal of a rational basis”); Lian v. Ashcroft,
379 F.3d 457, 459 (7th Cir. 2004) (vacating and remanding
claim for relief under Convention Against Torture when
“most of” IJ’s opinion “taken up with irrelevancies”);
Hengan v. INS, 79 F.3d 60, 63 (7th Cir. 1996) (vacating and
remanding denial of asylum where IJ’s focus on facts
irrelevant to petitioner’s claim suggested that IJ misunder-
stood arguments altogether).
In sum, the BIA’s final order of removal upholding the IJ’s
denial of Tolosa’s claim must be vacated and remanded so
that the IJ may reconsider her claim in light of the record
No. 03-1937 9
evidence, which strongly suggests that Tolosa’s treatment
is attributable to her Oromo ethnicity. See Lian, 379 F.3d
at 461-62 (remanding because IJ “completely ignored” evi-
dence supporting petitioner’s claim). Because the IJ concluded
otherwise, he never evaluated whether that treatment
amounted to “persecution.” Although we leave that question
for the IJ to resolve as an initial matter, we note that we have
routinely recognized that the type of treatment Tolosa and
her family endured—detentions, interrogations, beatings
and rape—may qualify as persecution. See Vladimirova v.
Ashcroft, 377 F.3d 690, 696 (7th Cir. 2004) (collecting cases);
Bace v. Ashcroft, 352 F.3d 1133, 1138 (7th Cir. 2003).
III.
For the foregoing reasons, we GRANT the petition for
review, VACATE the BIA’s order, and REMAND for further
proceedings.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-4-04