Nanyange, Grace v. Gonzales, Alberto R. , 133 F. App'x 304 ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 19, 2005*
Decided May 13, 2005
Before
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 04-1705
GRACE SUSAN NANYANGE, Petition for Review of an Order of
Petitioner, the Board of Immigration Appeals
v. No. A95-585-765
ALBERTO GONZALES, Attorney
General,
Respondent.
ORDER
Ugandan citizen Grace Susan Nanyange applied for asylum and withholding
of removal, claiming that she was detained and raped in Uganda because she
supported an opposition presidential candidate. The Immigration Judge denied
relief, finding that Nanyange’s testimony was inconsistent and therefore not
*
Attorney Godfrey Y. Muwonge, counsel for the petitioner, did not appear for
oral argument on April 19, 2005. Mr. Muwonge did call the court, shortly before 9:30
a.m., to say that he could not appear due to illness. With that, we heard an oral
argument from the attorney for the respondent and ordered that the case would be
decided on the briefs. Mr. Muwonge’s nonappearance, the subject of orders issued on
April 19 and April 28, will be addressed in a separate order which we will issue in due
course.
No. 04-1705 Page 2
credible. Nanyange appealed, and the Board of Immigration Appeals affirmed the
IJ’s decision without opinion. Because we find that the IJ’s credibility
determination was not supported by specific and cogent reasons, we grant
Nanyange’s petition for review, vacate the IJ’s decision, and remand Ms.
Nanyange’s petition for further proceedings.
The INS began removal proceedings against Nanyange in August 2002 for
overstaying her visitor’s visa. Nanyange apparently came to the INS’s attention
when she applied for asylum and withholding of removal, based on her support of
an opposition presidential candidate. She maintained that this support led
Ugandan officials to “accuse [her] of being a rebel collaborator which in Uganda is
equal to a death sentence.” In a lengthy affidavit attached to her application,
Nanyange detailed her political activities, her subsequent detentions and rapes at
the hands of Ugandan officials, and eventual flight from the country. She claimed
that, should she be returned to Uganda, she would “be arrested, detained, raped
again and possibly killed.”
Nanyange repeated the substance of her application in testimony at her
hearing before an IJ in November 2002. She stated that her family’s problems in
Uganda began in 1997, when her husband, a member of the local council that
implemented regulations for the Ntinda region (just outside the capital city of
Kampala), expressed opposition to the council’s policies preventing journalists and
the general public from having access to council meetings. Nanyage says police
arrested, detained, and beat her husband on three occasions that summer. Fearing
for his life, he fled the country in August and resurfaced in Japan two months later.
Nanyange herself became politically active in 2001, when she volunteered as
a logistics advisor for the presidential campaign of Kizza Besigye, a retired army
colonel who was considered to be the “the most significant electoral challenge”
incumbent President Yoweri Museveni had ever faced. In this volunteer position,
Nanyange organized rallies, dealt with campaign finances, and discussed Besigye’s
agenda with voters in her region. She stated that “government military agencies”
frequently disrupted her rallies and arrested supporters. Besigye lost the election
to Museveni and fled the country amidst rumors that government security officers
were planning to arrest him.
After Besigye’s departure, Ugandan authorities monitored Nanyange more
closely, eventually detaining and raping her. In July 2001, when Nanyange
returned from an HIV-prevention conference in Buenos Aires, the chairman of the
local council (the same council Nanyange’s husband had served on and later
opposed) came to her home and accused her of making the trip to lobby for funds for
Besigye. A few days later, he returned with two local guards and took her to the
“chief directorate of military intelligence” for interrogation. The chief directorate
No. 04-1705 Page 3
asked her why she was campaigning for Besigye and she responded that she had a
legal right to do so. He then ordered her detained at the Ntinda police station,
where she was placed in a small, dark cell with her hands tied behind her kandoya
style1**and her legs spread and tied to poles. Nanyange testified that she was then
raped by two men; although her cell was too dark to identify them, she heard them
speaking Swahili, which led her to believe that they were policemen. The attackers
also struck her with the butts of their guns. Nanyange was released the next day
after her sister contacted an attorney, Christine Mugerwa, who spoke to a
government official who intervened on Nanyange’s behalf. Although Nanyange was
too embarrassed to go to the hospital, her sister asked a doctor of traditional
medicine to come to the house, tend to the blisters Nanyange suffered when she was
tied up, and treat her with antibiotics.
The chairman of the local council continued to monitor Nanyange and
question her about her activities. He told her that she should report to him
“whenever [she] was going away from home, if it wasn’t for [a] walk.” He became
convinced that Nanyange was aiding “impending rebels from the southern part of
Uganda, from Rwanda to Uganda, and the government believed those rebels were
loyal to Besigye.” He accused her of channeling funds from her husband to rebels.
In September 2001 the council chairman came to Nanyange’s home and announced
that he was going to spend the night there. He told her that she would have to
“make a relationship” with him to save herself from his charges that she was
connected to rebel groups. Although Nanyange called for her neighbors’ help, the
chairman sent them away and ordered local guards to detain her. She was once
again taken to the police station, tied up, beaten, and raped by two men. Again she
avoided the hospital; the same doctor of traditional medicine returned to her home
and treated her.
After this second episode Nanyange decided to flee Uganda because she
believed her “life was quite in danger.” She managed to secure an invitation to
attend another HIV-prevention conference, this time in Florida. She obtained a
visitor’s visa and took a night flight out of Uganda so that her movements would be
less closely scrutinized. Nanyange arrived in the U.S., and after a few days at the
conference traveled to Chicago, where she stayed with a friend. In July 2002
Nanyange received a letter from her sister warning her that the chairman was still
looking for her. According to the letter, the chairman had searched Nanyange’s
home several times, detained her brother and questioned him about her
1
“Kandoya” is a common form of torture in Uganda whereby a prisoner’s
chest is stretched painfully tight by binding his arms together behind his back. See
Human Rights Watch, State of Pain: Torture in Uganda, at
http://hrw.org/reports/2004/uganda0404/index.htm.
No. 04-1705 Page 4
whereabouts, and confiscated her vehicle. Based on this information, Nanyange
testified that she believed she would be killed if she returned to Uganda.
The IJ and the lawyer for the government asked Nanyange to elaborate on a
number of points that would later serve as a basis for the IJ’s adverse credibility
determination. First, they sought more detail about Nanyange’s husband.
Although Nanyange stated that she spoke to her husband twice a month, she was
unable to provide details about his employment, other than to say that he did
“mechanical work” and that he was “surviving.” Nor could she confirm her
husband’s immigration status in Japan; she stated that he had “report[ed] to the
police authorities” upon his arrival and that she believed he was there legally, but
she didn’t know anything about his visa. Nanyange also expressed uncertainty as
to her husband’s grasp of the Japanese language and his plans for the future.
When asked why she had not discussed these topics with her husband, Nanyange
responded that “African men a bit funny. They . . . really don’t want to discuss
much of their hardships to . . . the ladies so much.”
Next the lawyer for the government questioned Nanyange about her
detentions, asking if attorney Mugerwa helped obtain her release both times.
When Nanyange answered yes, the government asked why Mugerwa’s affidavit
acknowledged her providing assistance only with the second detention. Nanyange
could not explain, but simply stated that her sister had told her that Mugerwa
helped on both occasions. Similarly, the government inquired as to why Nanyange
had stated in an INS interview that she did not seek medical help after her rapes,
but testified at her hearing that a doctor came to her home to treat her. Nanyange
responded that the doctor who had helped her was a “local traditional doctor” and
not a medical doctor. She did not mentioned him in her INS interview, she said,
because she “thought they meant going to a hospital,” which she had not done.
The IJ was most concerned, however, with Nanyange’s assertion that the
chairman of the local council had accused her of raising funds for rebels. In an
extensive colloquy, he asked her to identify “the movement or group” of which the
chairman had been speaking. She stated that she really didn’t know, but suggested
that he might have meant the Allied Democratic Forces or some unnamed people
“trying to come into Uganda from Rwanda, and also regarded as rebels.” The gist of
the chairman’s accusation, she repeated, was that she was receiving money from
her husband to channel to rebels loyal to Besigye. The IJ then interjected that
“there have never been any rebels attacking Uganda from the South” and that the
leaders of Uganda and Rwanda were on good terms with one another. Nanyange
agreed that in fact no rebels ever actually attacked Uganda from Rwanda, but
asserted that the chairman nonetheless accused her of being involved in
fundraising for such an attack. The IJ then repeatedly upbraided her, asking “how
[she] could be accused of aiding a group which didn’t exist.” Nanyange responded
No. 04-1705 Page 5
that the chairman had accused her of many “bad activities, which [she] wasn’t
doing at all,” and that this was simply another example. She reasserted that,
contrary to the chairman’s belief, “Besigye did not have any rebel group.”
In addition to her testimony, Nanyange introduced several documents into
the record. First, she submitted a letter from her sister describing the chairman’s
continuing efforts to locate her and urging her not to return because “the moment
these people get their hands on you you will be dead.” She also presented a letter
from another campaign worker attesting to her involvement in Besigye’s logistics
department and an affidavit from attorney Mugerwa corroborating her two arrests
and detentions. Finally, she submitted a number of newspaper articles and reports
from human rights organizations discussing the Ugandan government’s monitoring
and harassment of opposition political forces and the eventual flight of Colonel
Besigye.
The IJ denied Nanyange’s application because her “sworn testimony has
been changed at so many points, that there is reason to question the material parts
of her account, namely whether she was detained and whether she was raped, as
she contends.” Specifically, the IJ disbelieved Nanyange’s testimony with regard to:
(1) her involvement with rebels in Uganda, (2) her husband’s circumstances in
Japan, (3) the medical treatment she received after being raped, and (4) who had
interceded with the government to obtain her release from detention after her
rapes.
Nanyange first argues that the IJ erred when he determined that her
testimony was not credible. She claims that the “inconsistencies” the IJ found in
her testimony are no more than “misunderstandings created by the IJ’s or the
Government’s Trial Attorney’s aggressive cross-examination.”
An IJ’s credibility determinations are typically given great deference and
overturned only in “extraordinary circumstances” where they are not supported by
“cogent reasons” that “bear a legitimate nexus to the finding.” Tolosa v. Ashcroft,
384 F.3d 906, 909 (7th Cir. 2004). They should not be disturbed simply because a
different credibility finding could also be supported by substantial evidence. Capric
v. Ashcroft, 355 F.3d 1075, 1086-87 (7th Cir. 2004). We have warned, however, that
“adverse credibility determinations should not be grounded in trivial details or
easily explained discrepancies” if they are to survive appellate review. Korniejew v.
Ashcroft, 371 F.3d 377, 387 (7th Cir. 2004). Careful review is especially important
because an adverse credibility determination in essence “dooms” an alien’s asylum
claim. Uwase v. Ashcroft, 349 F.3d 1039, 1041 (7th Cir. 2003).
The IJ here failed to articulate cogent reasons that bear a legitimate nexus to
his credibility finding. He rejected Nanyange’s testimony based on four
No. 04-1705 Page 6
inconsistencies that, upon careful inspection of the record, are either not
inconsistent or not material to Nanyange’s claim. The IJ first faulted Nanyange for
saying “that there was actually a group of armed rebels who invaded Uganda,
[when] as she admitted later, and the historical record shows, there has not been
any armed group invading southern Uganda in the summer of 2001.” The IJ
viewed Nanyange’s inconsistencies as a sign of “invention to cover up or explain
inconsistencies in her account.” But the IJ’s characterization misrepresents
Nanyage’s testimony, which was that the local chairman falsely accused her of
channeling funds to rebels loyal to Besigye. Nanyange steadfastly denied knowing
which rebels the chairman had in mind. When the IJ continued to press for the
name of a rebel group, Nanyange suggested that the chairman might have been
referring to “the Allied Democratic Forces coming from the western.” The State
Department’s Country Report in fact recognizes that this group was active in
Uganda during this period, although its “activities decreased during the year.” U.S.
Dep’t of State, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES 2001 (Feb. 2002).
But regardless, Nanyange’s point in testifying about the rebels was that the local
chairman was fabricating false accusations against her, and indeed the State
Department’s Country Report confirms that several Besigye supporters were falsely
detained. U.S. Dep’t of State, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES
2004 (Feb. 2005) (noting that “[a]rbitrary arrest and detention, including those of
opposition supporters,” remain a problem in Uganda). Nanyange’s testimony about
rebel groups was not a proper basis for deeming her testimony incredible.
The IJ’s second reason for discounting Nanyange’s testimony is similarly
inadequate. He stated that Nanyange’s testimony that her husband lived legally in
Japan “defie[d] belief.” He faulted her for not knowing the type of visa her husband
had or how well he spoke Japanese. Although Nanyange and her husband spoke
twice a month, the IJ’s premise that he surely would have mentioned the type of
visa he held or the names of the places he obtained subsistence labor seems
doubtful. Nor did the IJ explain his reason for discounting Nanyange’s explanation
that she and her husband mainly spoke of their children, from whom they were
separated, and that African men tend not to share their difficulties with their
wives. Regardless, the details of Nanyange’s husband’s life in Japan have nothing
to do with whether she herself suffered persecution in Uganda because of her
political beliefs, and thus do not serve as a basis to deem her testimony incredible.
See Uwase, 349 F.3d at 1043.
Similarly, the IJ’s third reason for rejecting Nanyange’s testimony does not
concern the heart of her application. The IJ pointed to an inconsistency between
Nanyange’s statement in an INS interview that she had not sought medical
treatment after her rapes and her hearing testimony that she had been visited in
No. 04-1705 Page 7
her home by a doctor of traditional medicine.2***Because this doctor “issued
antibiotics to her, which is hardly the sort of remedy that a faith healer or witch
doctor could give her,” the IJ apparently believed that Nanyange had simply
fabricated the doctor’s visit. But the IJ did not substantiate his view that
antibiotics are as strictly regulated in Uganda as they are here, nor did he
articulate a reason for rejecting Nanyange’s explanation that she had not thought
of the visit from the doctor of traditional medicine as the sort of “medical treatment”
about which the INS interviewer was inquiring. Nanyange’s explanation is not
unreasonable in light of the disparities between the two forms of care in Africa,
where over 80% of the population uses traditional medicine. World Health
Organization, WHO TRADITIONAL MEDICINE STRATEGY 2002-2005, available at
http://www.who.int/topics/traditional_medicine/en/. And regardless, it is
Nanyange’s detentions and rapes that form the heart of her claim, not any care she
received subsequently. Trivial inconsistencies do not constitute a valid basis for
discrediting an alien’s asylum claim. Iao v. Gonzales, 400 F.3d 530, 532 (7th Cir.
2004).
The IJ’s final reason for disbelieving Nanyange is also trivial. He faulted her
for testifying that attorney Mugerwa twice facilitated her release from prison when
Mugerwa’s statement mentioned helping with only a single release. He rejected
Nanyange’s explanation about learning from her sister that Mugerwa helped both
times, stating simply that if Mugerwa had helped twice, “she should have made
note of that in her statement.” But again, it is not how Nanyange obtained release
after her rapes that matters, but whether she was detained and raped in the first
place. Mugerwa’s affidavit in fact supports Nanyange’s basic claim that she was
detained and raped in July and September 2001, which might in and of itself
establish persecution. Tolosa, 384 F.3d at 910-11; Garcia-Martinez v. Ashcroft, 371
F.3d 1066, 1072 (9th Cir. 2004). Nanyange’s perceived failure to correctly recall
details surrounding her release is of little relevance given the overall clarity of her
account of the persecution itself. See Lin v. Ashcroft, 385 F.3d 748, 755-56 (7th Cir.
2004) (IJ’s “skepticism” about alien’s claim that ten people accompanied her to a
forced abortion did “not form a valid basis for a negative credibility determination”
where account was otherwise corroborated). We conclude that the IJ found
Nanyange to lack credibility based solely on “trivial details” and “easily explained
2
Of course, Nanyange’s INS statement is not in the record, making it
difficult for us to evaluate whether it was truly inconsistent with her hearing
testimony. See Matter of S-S-, 21 I & N Dec. 121, 123-24 (BIA 1995) (“When, as in
these asylum proceedings, the applicant’s credibility is placed in issue because of
alleged statements made at the asylum interview, our review requires a reliable
record of what transpired at that interview.”).
No. 04-1705 Page 8
discrepancies.” That decision, on this record, cannot be allowed to stand.
Korniejew, 371 F.3d at 387.
Nanyange also argues that her testimony that she was twice detained and
raped because of her support of a political candidate established that she suffered
past persecution and would likely be persecuted in the future. As the government
correctly points out, however, an alien’s eligibility for asylum is a question that we
leave for an IJ to decide as an initial matter. See INS v. Ventura, 537 U.S. 12, 16-
17 (2002); Tolosa, 284 F.3d at 910-11.
Accordingly, we GRANT Nanyange’s petition for review, VACATE the
judgment of the IJ, and REMAND for a determination of Nanyange’s eligibility for
asylum. We recommend that Nanyange’s petition, on remand, be considered by a
different immigration judge.