Tadesse, Ejigu v. Gonzales, Alberto ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3265
EJIGU TADESSE,
Petitioner,
v.
ALBERTO R. GONZALES,
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A96 139 339.
____________
ARGUED MAY 29, 2007—DECIDED JULY 9, 2007
____________
Before BAUER, WOOD, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Ejigu Tadesse was living
in Italy in 1998 when war broke out between Eritrea and
her home country of Ethiopia. After a cease-fire was
declared in 2000, she attempted to return home in order
to discover what had become of her family, who lived near
the border separating the two countries and with whom
she had lost all contact. Ethiopian policemen apprehended
her at the airport and accused her of being an Eritrean
spy because she is half ethnically Eritrean on her father’s
side. She contends that they severely beat her, and that
two of them raped her. The officers then ordered her to
leave the country. She returned to Italy and then came to
the United States seeking asylum. The immigration judge
2 No. 06-3265
denied the application and other relief, finding that the
Ethiopian deportation order that Tadesse included in her
application was fraudulent; the IJ also found Tadesse’s
testimony implausible and inconsistent. The Board of
Immigration Appeals affirmed on similar grounds, and
Tadesse petitioned this court for review.
We grant the petition for review. The IJ never gave
Tadesse an opportunity to rebut the government’s expert
testimony regarding the deportation order, and wrongfully
disregarded Tadesse’s corroborating evidence. Moreover,
the IJ’s treatment of the case demonstrates a troubling
disregard for the situation in Ethiopia at the time of
Tadesse’s ordeal. The case is remanded to the BIA for
further proceedings.
I. BACKGROUND
The 1998-2000 war between Ethiopia and Eritrea
arose over a border dispute and led to tens of thousands
of deaths on each side. Critically for our consideration,
the war also involved mass deportations. The govern-
ment of Ethiopia deported some 75,000 Eritrean nationals
and Ethiopians of Eritrean ethnicity during the conflict.
A cessation of hostilities was implemented in June 2000
and monitored by a United Nations peacekeeping force,
and the mass deportations stopped at that time. The
parties signed a comprehensive peace accord in December
2000.
Tadesse’s November 2000 ordeal at the Ethiopian air-
port occurred between the cessation of hostilities in June
and the final peace in December. After her release, she
learned that her father, brother, and sister had been
deported to Eritrea; that her mother’s and husband’s
whereabouts were unknown; and that her family’s home
and business had been confiscated by the government and
No. 06-3265 3
sold at auction. Although she was ordered to depart from
Ethiopia within eight days, she sought medical treatment
and recuperated at the home of a family friend for two
months before leaving the country.
At Tadesse’s immigration hearing, the government
sought and obtained a continuance in order to send the
Ethiopian deportation order to the Department of Home-
land Security’s Forensic Document Laboratory (FDL) in
Virginia for analysis. On the day of the continued hearing,
the government provided Tadesse with a one-page FDL
report that had been prepared and submitted to the
government approximately six months earlier by docu-
ment expert Dorothy Held, whom the government sought
to have testify by telephone. Tadesse objected, stating
that she should have been given an opportunity to study
the report in advance of the hearing, but the IJ refused to
grant a continuance. The IJ stated, however, “If you
request, at the conclusion of the hearing today, the oppor-
tunity to present your own expert, to rebut anything
presented, I would grant you a continuance for that pur-
pose.” The IJ also accepted the affidavit of Saule Buzaite,
Tadesse’s therapist at the Marjorie Kovler Center for the
Treatment of Survivors of Torture, and sent home
Buzaite—who was prepared to testify—stating that she
could be recalled if “something comes up.”
Document examiner Held testified consistent with her
report that the Ethiopian deportation order, a form that
has spaces where the individual’s name and identifica-
tion number are to be hand-written in, “is probably not a
valid issuance.” The document on which Tadesse’s name
was written in was a photocopy with a photocopied seal
rather than an original with its own seal. Held opined
that it was therefore not authentic: “[T]he appearance of
a genuine wet seal impression, is a bench mark of a
genuine document. This is not country specific. All docu-
ments on which wet seals are used as certifying indicia
4 No. 06-3265
must have an original wet seal. If it does not, it is not
a valid issuance.” Despite this categorical statement
that all photocopied seal-bearing documents issued
anywhere in the world are automatically phonies, on cross-
examination Held conceded that she did not have a
sample of an Ethiopian deportation order with which to
compare the document, although she did have an Ethio-
pian birth certificate issued by the same office. Tadesse’s
counsel then questioned Held on the context in which the
deportation order had been issued—specifically, between
interim and final peace accords ending a war that had
involved mass deportations of ethnic Eritreans like
Tadesse from Ethiopia. Counsel asked whether Held was
aware that tens of thousands of deportation orders had
been issued very recently, but Held replied that this
was beyond her expertise. Counsel then asked whether,
“assuming many of them were issued, very quickly, as part
of a government policy, trying to get people out of the
country quickly, is it possible that they were done differ-
ently than other documents would have been done?” The IJ
sustained the government’s objection to the question as
calling for speculation.
At the end of the hearing Tadesse did request a continu-
ance to put on her own expert to rebut Held’s testimony,
and the IJ granted the request. Nevertheless, at the next
continued hearing the IJ refused to accept the affidavit or
testimony of Tadesse’s expert, Professor Donald N. Levine,
an eminent scholar of Ethiopian politics and culture at the
University of Chicago who has written two books and
dozens of academic articles about Ethiopia. The IJ stated:
[Y]ou’re attempting to bolster your case in chief
under the guise of rebutting FDL testimony. And
there’s nothing in this affidavit that leads me to
conclude that this professor, while certainly well
qualified and, you know, knowledgeable of the
situation in Ethiopia, I don’t see anything here
No. 06-3265 5
that would qualify him as an expert as to issuance
of documents. That’s really the heart of your
rebuttal right now, and this isn’t—this doesn’t
address it, so I’m not going to allow it.
The IJ went on to deny the application for asylum and
other relief based on the allegedly fraudulent document
and various aspects of the testimony which she con-
sidered implausible or inconsistent with Tadesse’s asylum
application. The BIA affirmed, echoing the IJ’s stated
reasons.
II. ANALYSIS
Since the BIA issued its own opinion, we review that
decision rather than the IJ’s directly. See Agbor v. Gonza-
les, No. 06-2015, 2007 WL 1518522, at *2 (7th Cir. May 25,
2007). Tadesse can demonstrate that she is a refugee,
and hence eligible for asylum, by showing that she is
unable or unwilling to return to Ethiopia because of
persecution or a well-founded fear of persecution on
account of her race, religion, nationality, membership of
a particular social group, or political opinion. 8 U.S.C.
§§ 1101(a)(42)(A), 1158(b)(1)(A). (Ethnic Eritreans living
in Ethiopia constitute a distinct social group. See Negeya
v. Gonzales, 417 F.3d 78, 83 (1st Cir. 2005).) We review
the BIA’s decision under the deferential substantial
evidence test, and will affirm an adverse credibility find-
ing so long as it is supported by specific, cogent reasons
that bear a legitimate nexus to the finding. Ayi v. Gonza-
les, 460 F.3d 876, 880 (7th Cir. 2006).
The BIA, like the IJ, discredited Tadesse based on three
types of findings: (1) her use of a “fraudulent” document;
(2) “implausible” aspects of her testimony; and (3) “incon-
sistencies” between her testimony and asylum applica-
tion. Moreover, the IJ placed very little weight on the
6 No. 06-3265
affidavit from Tadesse’s torture counselor and the BIA
approved this decision. We examine these matters in turn.
A. Ethiopian deportation order controversy
Tadesse contends that she was deprived of due process,
or at least the protections set out in 8 U.S.C.
§ 1229a(b)(4)(B),1 by the IJ’s handling of the Ethiopian
deportation order. First, she contends, she was given
insufficient notice of the government expert’s conclusions
when she was provided a copy of Held’s report on the day
of her hearing. Second, she argues that the IJ arbitrarily
barred her from presenting material evidence on her
behalf by refusing to allow her to rebut Held’s testimony
and report.2
Tadesse was entitled to a reasonable opportunity to
examine adverse evidence and to prepare for cross-exami-
nation. See § 1229a(b)(4)(B); Al Khouri v. Ashcroft, 362
F.3d 461, 464-67 (8th Cir. 2004). Receiving key evidence on
the day of the hearing seems to fall well short of this
standard, although the IJ may have righted the situation
by giving Tadesse a continuance to rebut document
1
“[T]he alien shall have a reasonable opportunity to examine the
evidence against the alien, to present evidence on the alien’s
own behalf, and to cross-examine witnesses presented by the
Government.”
2
Tadesse also argues that Held was not qualified to present
expert testimony under Pasha v. Gonzales, 433 F.3d 530, 535 (7th
Cir. 2005). While this argument has merit—Held did not have
a copy of an Ethiopian deportation order with which to compare
Tadesse’s, and, if her curriculum vitae is any indication, does
not appear to speak Amharic, the language in which the docu-
ment is written—Tadesse did not raise it to the Board and hence
we cannot consider it. See Pjetri v. Gonzales, 468 F.3d 478, 481
(7th Cir. 2006).
No. 06-3265 7
examiner Held’s findings. See Zaidi v. Ashcroft, 377 F.3d
678, 682 (7th Cir. 2004) (three weeks to prepare for
oral hearing not insufficient); Nyama v. Ashcroft, 357 F.3d
812, 816-17 (8th Cir. 2004) (per curiam) (petitioner not
“ambushed” by evidence introduced on day of hearing
where evidence not actually admitted until six months
later).
Of course, at the subsequent hearing the IJ refused to
consider Professor Levine’s affidavit or testimony. This
was a violation of Tadesse’s right to present evidence on
her own behalf, for an IJ may not bar whole chunks of
material evidence favorable to the petitioner. See Rodri-
guez Galicia v. Gonzales, 422 F.3d 529, 538-40 (7th Cir.
2005); Niam v. Ashcroft, 354 F.3d 652, 659-60 (7th Cir.
2004); Kerciku v. INS, 314 F.3d 913, 918-19 (7th Cir.
2003) (per curiam). The IJ’s reasoning—that only the
testimony of another document expert could rebut Held’s
conclusions—is flawed. Two matters were potentially at
issue concerning the Ethiopian deportation order: (1)
whether it was a photocopied document; and (2) whether
the Ethiopian government might have used a photocopied
deportation order in November 2000. Matter one is the
province of a document expert; matter two could just as
easily be the province of a political expert. Tadesse has
conceded from the beginning the first point—that the
document is photocopied—so all that was in dispute is
point two. Held stated that any photocopied seal-bearing
document, no matter where it is issued, is necessarily
a phony, despite acknowledging her own ignorance of
country conditions in Ethiopia. But when Tadesse’s
counsel tried to pin Held down and ask whether such
documents might be used in a war zone involving mass
deportations—a notion that strikes us as quite plausi-
ble—the IJ sustained an objection by the government
that the question called for speculation. So on the question
most critical to Tadesse’s fate—whether a photocopied
8 No. 06-3265
deportation order might have been issued to effect her
removal from Ethiopia—the record contained no evidence
at all.
Dr. Levine spoke directly to this point in his proffered
affidavit, and his conclusion was based on his understand-
ing of the situation in Ethiopia at the time:
I find it entirely plausible that the prison officers
served Ms. Tadesse with a mass-produced, as
opposed to individually-prepared, document order-
ing her deportation under her release from deten-
tion. The chaotic conditions in which the deporta-
tions took place, compounded by the illiteracy and
near-illiteracy of many low-level government
employees, could very likely have led in many
cases to blanket authority to effect deportations.
It was arbitrary of the IJ to reject this evidence, which
was directly on point and went to the very heart of
Tadesse’s claim. The error was prejudicial, as it had the
potential to affect the outcome of the proceedings. See
Boyanivskyy v. Gonzales, 450 F.3d 286, 294 (7th Cir. 2006).
B. “Implausible” testimony
The IJ also based her negative credibility finding on
what she believed to be implausible aspects of Tadesse’s
narrative. The IJ’s main point—a point that the BIA
specifically blessed—was that since the Ethiopian govern-
ment stopped deporting ethnic Eritreans by the thousands
after the June 2000 cease-fire, Tadesse’s claim to have
been excluded in November 2000 was unbelievable. We
do not see how barring one ethnic Eritrean from return-
ing to Ethiopia is inconsistent with ceasing mass deporta-
tions of ethnic Eritreans several months earlier, especially
when ethnic Eritreans continued to face intense persecu-
tion after the war’s end. According to a May 2001 report
No. 06-3265 9
in the record by the former Immigration and Naturaliza-
tion Service, “the peace process has not fundamentally
changed the situation of people of Eritrean origin in
Ethiopia.”
Moreover, substantial evidence in the record suggests
that even after the June cease-fire, ethnic Eritreans had
difficulty reentering the country. The 2001 State Depart-
ment Country Report on Human Rights Practices notes
that “Eritreans and Ethiopians of Eritrean origin have
been able to obtain exit visas but often are not permitted
to return to the country.” The 2001 INS report states
that “[m]any [ethnic Eritreans] have had their passports
confiscated and been denied exit visas to leave Ethiopia or
been given a single exit visa with no right of return to
Ethiopia.” Indeed, the issue of removing ethnic Eritreans
remained a hot topic in Ethiopian politics well beyond the
1998-2000 war: the same INS report notes that in March
2001, roughly half of the ruling political party’s central
committee members resigned in protest because they
wanted to continue a formal policy of expulsion. Federal
case law also shows that ethnic Eritreans in Ethiopia
have continued to be stripped of their citizenship or denied
re-entry into the country. See Haile v. Gonzales, 421 F.3d
493 (7th Cir. 2005); Mengistu v. Ashcroft, 355 F.3d 1044(7th Cir. 2004). So do press accounts. See “Split by a
Pointless War,” The Economist, Sept. 19, 2002, at 45
(noting that the border dispute was not resolved until
April 2002, that “[f]amilies that were split up cannot
easily reunite, because the border remains closed,” and
that a man who is half Ethiopian and half Eritrean is not
welcome in Ethiopia and is regularly accused of being
a spy).
The other implausibilities noted by the IJ are similarly
unsupported by substantial evidence. For instance, the IJ
disbelieved that Tadesse preferred to seek asylum in the
United States rather than Italy, a country that was quite
10 No. 06-3265
familiar to her. But Tadesse explained that after she
returned to Italy from Ethiopia in early 2001, members of
the Eritrean community there distrusted her and treated
her as an Ethiopian spy. She also was able to obtain
lodging from a friend in America. The IJ tossed aside
this explanation, calling it “highly dubious given that
the respondent did not clearly explain why the entire
Eritrean community of Italy thought she was a spy.” It is
unclear why the entire country had to turn against
Tadesse in order for her decision to leave to be considered
plausible.
C. Inconsistencies were insignificant
We have held repeatedly that inconsistencies that are
easily explained or concern trivial matters cannot support
an adverse credibility finding. See, e.g., Tandia v. Gonza-
les, No. 06-2471, 2007 WL 1487407, at *3 (7th Cir. May 23,
2007); San Kai Kwok v. Gonzales, 455 F.3d 766, 769-79
(7th Cir. 2007). Yet the BIA approved the IJ’s detection of
inconsistencies on such insignificant details as whether or
not Tadesse completed hairdressing school in Italy before
returning to Ethiopia in 2000. The IJ also perceived an
inconsistency between Tadesse’s application, where she
stated that she was “expelled” from Ethiopia, and her
testimony: “She did not say that she was ‘expelled’ from
Ethiopia; rather she left Ethiopia on her own two months
after the rape.” We cannot agree with the IJ that being
ordered to leave in eight days but waiting two months to
do so is leaving of one’s own free will. More to the point,
Tadesse stated in both her application and her testimony
that the deportation order told her to leave within eight
days. Whether she characterized that on one occasion
but not another as being “expelled” is irrelevant.
Two other points concern more substantial matters.
First, the IJ contended that Tadesse never proved her
No. 06-3265 11
Eritrean ethnicity, noting that the State Department
report “indicates that in previous years, the Ethiopian
government has issued most Eritreans and Ethiopians of
Eritrean origin identification cards noting their Eritrean
nationality.” But the report specifies that ID cards were
issued in 1999, and Tadesse was living abroad at that
time. Moreover, the deportation order specifically notes
her Eritrean heritage, and since the IJ’s decision to
discount that document is not supported by substantial
evidence, it would seem to provide adequate proof of her
ethnicity. The IJ also pointed out that Tadesse stated
in her asylum application that authorities mailed her
the deportation order, whereas she testified that it was
handed to her upon her release. The IJ believed this to
be a major inconsistency going to the heart of Tadesse’s
claim, yet she never asked Tadesse about it at the hearing.
She should have explored whether there was a good reason
for the inconsistency, rather than bringing it up for the
first time in the opinion, when it was too late to explain.
See Shtaro v. Gonzales, 435 F.3d 711, 716 (7th Cir. 2006).
D. Corroboration was inappropriately rejected
The BIA also erred by approving the IJ’s treatment of
Tadesse’s torture counselor, Saule Buzaite. The IJ ac-
cepted an affidavit and then sent Buzaite—who was ready
to testify—home, saying she could be recalled if “some-
thing comes up.” But then the IJ proceeded to discount
the affidavit’s force in a number of ways. For instance, the
IJ pointedly noted that “although Ms. Buzaite is a ‘thera-
pist’ she is not a psychologist or psychiatrist.” Buzaite’s
affidavit, prepared in January 2004, noted that she held a
master’s degree in psychology and expected to receive her
Ph.D. in clinical psychology in August 2004—nine months
before the IJ rendered her written decision. The IJ’s
comment was therefore incorrect as well as inappropri-
12 No. 06-3265
ate. Moreover, the IJ stated that even accepting Buzaite’s
conclusion that Tadesse suffered from Post-Traumatic
Stress Disorder, “these symptoms of PTSD do not estab-
lishes [sic] that the events described in her testimony and
her affidavit are the events which caused these symp-
toms.” This assertion is completely at odds with Buzaite’s
affidavit, which repeatedly states that Tadesse’s symp-
toms are characteristic of survivors of rape and torture.
The IJ could not have carefully reviewed Buzaite’s find-
ings and reached this conclusion. This portion of the
opinion, like so much else, is not supported by cogent
reasons and cannot stand.
E. Future persecution claim must be reexamined
The IJ noted in a brief section toward the end of the
opinion that even assuming Tadesse was credible and
that she suffered past persecution, a fundamental change
in country conditions—the regularization of relations
between Ethiopians and ethnic Eritreans—means that
any fear of future persecution would not be well founded.
See 8 C.F.R. § 1208.13(b)(1)(i)(A). But the BIA did not
adopt this finding, and anyway, conditions have changed
again since the IJ’s decision: Ethiopia and Eritrea are on
the brink of a proxy war in Somalia, which could well
affect ethnic Eritreans in Ethiopia. See “It Just Gets
Worse,” The Economist, Apr. 28, 2007, at 54; Jeffrey
Gettleman, “Chaos in Somalia as Fighting Intensifies
and Death Toll Rises,” N.Y. Times, Apr. 23, 2007, at
A3. Moreover, the BIA should consider on remand wheth-
er Tadesse is entitled to relief under 8 C.F.R.
§ 1208.13(b)(1)(iii)(A). That regulation provides for so-
called “humanitarian asylum” in the absence of a fear of
future persecution where the past persecution was so
heinous that repatriation would be inhumane. Tadesse
suffered a gang rape that caused lasting psychological
No. 06-3265 13
damage and essentially lost her entire family in the war.
She could well qualify. See Brucaj v. Ashcroft, 381 F.3d
602, 608-11 (7th Cir. 2004); Lopez-Galarza v. INS, 99 F.3d
954, 961-63 (9th Cir. 1996).
III. CONCLUSION
We do not lightly reverse the BIA’s decision, given the
deferential standard of review applicable in a petition for
review. But the IJ’s opinion, which the BIA echoed, is
riddled with systematic and obvious errors. Tadesse did
not receive a fair hearing, and she is entitled to a new one.
We urge the Board on remand to reassign the case to a
different immigration judge. See Huang v. Gonzales, 403
F.3d 945, 951 (7th Cir. 2005); Yi-Tu Lian v. Ashcroft, 379
F.3d 457, 462 (7th Cir. 2004); Kerciku, 314 F.3d at 919 (per
curiam); Georgis v. Ashcroft, 328 F.3d 962, 970 (7th Cir.
2003); cf. Cir. R. 36. We GRANT the petition for review,
VACATE the BIA’s decision, and REMAND for further
proceedings consistent with this opinion.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-9-07