Elsa Ghebrehiwet Kiflemariam v. U.S. Atty. Gen.

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 18, 2010
• Docket: 08-16423
• Status: Unpublished

Opinion

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________ FILED U.S. COURT OF APPEALS No. 08-16423 ELEVENTH CIRCUIT MARCH 18, 2010 ________________________ JOHN LEY CLERK Agency No. A098-878-976

ELSA GHEBREHIWET KIFLEMARIAM,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the Board of Immigration Appeals _________________________

(March 18, 2010)

Before EDMONDSON, BARKETT and ROTH,* Circuit Judges.

*Honorable Jane R. Roth, United States Circuit Judge for the Third Circuit, sitting by designation. PER CURIAM:

I. Introduction

Elsa Ghebrehiwet Kiflemariam petitions for review of the order of the Board

of Immigration Appeals (BIA) affirming the Immigration Judge’s (IJ) denial of her

application for asylum, withholding of removal, and relief under the Convention

Against Torture. The BIA upheld the IJ’s conclusion that Kiflemariam was not

credible and therefore not eligible for asylum. For the reasons that follow, we will

reverse the decisions of the IJ and BIA, grant the petition for review, and remand

the case to the BIA for further proceedings.

II. Background

A. Facts

Kiflemariam is a thirty-seven year-old native of Eritrea, a small country

located in northeast Africa. On December 28, 2004, Kiflemariam entered the

United States in Los Angeles and applied for asylum approximately ten months

later. Kiflemariam’s application was based on persecution she suffered as a result

of expressing her political opinion and her fear that she would be subject to further

persecution if forced to return to Eritrea.

At eleven years old, Kiflemariam began training to be a nurse in Eritrea’s

ongoing war for independence from Ethiopia. Kiflemariam eventually was named a

“team leader” in the Eritrean army and was in charge of more than 30 soldiers. While treating soldiers on the warfront, Kiflemariam suffered severe shrapnel

wounds to her head, back, arms and legs.

In 1993, Eritrea gained independence, and Isaias Afewerki, one of

Kiflemariam’s fellow soldiers, became the de facto president of the country and

leader of Eritrea’s sole political party, the People’s Front for Democracy and Justice

(PFDJ). By this time, Kiflemariam was stationed at an army prison which housed

former soldiers whose allegiance to the PFDJ was suspect. Because the prisoners

had honorably fought for Eritrean independence, Kiflemariam sympathized with

their belief that the new government was unfairly punishing them.

Kiflemariam complained to her superiors about the mistreatment of her

fellow soldiers who she felt were unjustly imprisoned. As a result, government

agents arrested Kiflemariam at her home in October 2000. She was detained for

two weeks, during which time she was tied up and questioned extensively about the

prisoners under her care, denied food and water, and beaten.

Kiflemariam was then transferred to a prison in the capital city of Asmara,

charged with opposing the government, and officially “blacklisted.” While there,

Kiflemariam was interrogated about her involvement with other political dissidents

and received pressure to testify falsely against them. After two months at the

Asmara prison, Kiflemariam was released. However, shortly after returning home,

3 government agents brought her in for further questioning. Kiflemariam was

released again after two weeks, at which time she returned to her government-

provided home to find that she had been evicted.

In July 2001, Kiflemariam fled Eritrea on foot and went to Sudan. For ten

months she remained in Sudan with financial support from friends in Saudi Arabia.

Because Kiflemariam feared that the Eritrean government would catch her in

Sudan, she obtained a forged business visa and fled to Zimbabwe. However, even

in Zimbabwe, Kiflemariam did not feel safe from the reach of the Eritrean

government. She also could not find adequate medical treatment for her war

injuries. Therefore, in December 2004, Kiflemariam arranged to travel to the

United States.

B. Procedural History

After arriving in Los Angeles, Kiflemariam filed a timely application for

asylum, withholding of removal, and relief under the Convention Against Torture.

In her application, Kiflemariam detailed her personal experience in Eritrea and

submitted documentation evidencing the human rights abuses that many political

dissidents experience in that country. She also included two letters from Doctor

M.P. Ndiweni who treated Kiflemariam in Zimbabwe in August 2003 and October

2004 for her shrapnel wounds. In the letters, Dr. Ndiweni stated that Kiflemariam

4 was suffering severe pain, required constant supervision, and at times became

totally incapacitated.

An asylum officer recommended that Kiflemariam’s application be denied.

Accordingly, the United States Immigration and Customs Enforcement agency

instituted removal proceedings against Kiflemariam on January 14, 2006. At a

hearing on her application for asylum, Kiflemariam testified that she was detained

by the Eritrean government several times for interrogation and beaten to the point of

unconsciousness during her first detention. She also stated that the shrapnel

wounds she received during the war make her restless and impatient and that she

takes over-the-counter medication for the pain.

Through the aid of a Tigrean language translator, the IJ asked Kiflemariam

the following series of questions about whether she sought and received medical

treatment after being released from her first detention:

IJ: All right. On your first detention, were you hurt?

Kiflemariam: Yes.

IJ: All right. Now, do we have any medical records? Did you seek any medical assistance once you were released?

Kiflemariam: Where can I go? I was treating myself with my experience. I would take the anti-pain and other medicines, and I was treating myself.

5 ...

IJ: But I’m not, I understand that, yes. But when you were detained and then later released on that first occasion where you say you were hurt, you were beaten, why didn’t you go to that doctor and get a statement from him?

Kiflemariam: I went, I went to him sometime later, after that. I didn’t go instantly.

IJ: Okay. Is there anything that you’ve provided from him today regarding that treatment?

Kiflemariam: I have a paper that says if you want to get treatment for this, you have to go out of the country, but –

IJ: No, no, no. We’re not talking about the same treatment. You and I need to understand on this. I’m talking about when you were detained the first time. You were hurt, you told me, right?

IJ: Why didn’t you go seek treatment from the doctor who had saw you for the shrapnel wounds for these problems you had from the detention? Why didn’t you go to that doctor?

Kiflemariam: I tried myself to contain the problems that I had for about five months, but I saw him five months after my release from detention.

IJ: And you asked him about these problems you had from that detention?

Kiflemariam: Yes, I did.

6 ...

IJ: Well, did you ever see a doctor regarding your injuries from the first detention of October 2000?

Kiflemariam: No, I did not go. I didn’t want to go.

IJ: You didn’t ever see a doctor regarding those injuries?

Kiflemariam: I did not go. I did not go. With all the problems, I believed I could handle that one, so I didn’t go.

IJ: So the answer is yes, you never saw a doctor for those injuries.

Kiflemariam: Yes. I didn’t, I did not go instantly, but after some time, when I started feeling the pain, that was when I, I went.

...

IJ: Now, ma’am, it appears to the Court that you had two separate and distinct injuries, from your testimony today. You have the shrapnel and bullet wound injuries from 1988, that’s one.

IJ: And number two, we have the injuries, the pain of those injuries from the first detention in the year 2000. Is what I just stated correct?

IJ: Okay. Now, the Court is questioning you as to whether, upon your release from the first detention, did you ever seek medical treatment?

7 Kiflemariam: Only I used my own first aid to treat myself.

IJ: Okay. So, now let’s make sure we got your answer set. You’re telling me that from those injuries or the pain of that first detention, you never, ever consulted a doctor regarding that.

Kiflemariam: I, I, I treated myself for the pain. That was (indiscernible). The medicines that I was taking were also helping me. But there came a time that I couldn’t tolerate pain anymore, and there was a time that I had to see the doctor.

IJ: So if I ask you, did you ever seek medical treatment from the pain of the injuries from the first detention, it appears your answer is yes, you did, although not immediately upon your release from detention, it was a subsequent time therefrom.

IJ: Is that correct?

Kiflemariam: You are right.

(Administrative Record (AR) at 182-87.)

On January 31, 2008, the IJ issued an order denying Kiflemariam’s

application for asylum. The IJ based his decision on a finding that Kiflemariam’s

testimony was not credible in two respects. First, the IJ found that Kiflemariam’s

testimony about whether she sought medical treatment after her first detention was

confused with her statements about the treatment she received for her shrapnel

8 wounds, and therefore not credible. (See AR at 90 (“This was a question and

answer series that went back and forth for some seven or eight times, and while it is

possible th[at Kiflemariam] could have been confused about the question, surely

after the fifth or sixth time that it was asked, the question was clear.”)) Second, the

IJ concluded that because Kiflemariam appeared physically well enough to sit

through the hearing, she must have been exaggerating the state of her condition

years prior, as described by Dr. Ndiweni, that she suffered severe pain, sometimes

to the point of incapacitation. (See id. at 92-93 (finding that Kiflemariam “was

alert, appeared to walk satisfactorily, and has not made any complaint today during

this three- to four-hour hearing” and therefore “the Court can’t put much weight

into” her apparent “miraculous healing since 2003 and 2004.”)) Accordingly, the IJ

denied Kiflemariam’s application for all relief from removal, but granted her

voluntary departure.

On appeal, the BIA affirmed the IJ’s order denying Kiflemariam’s eligibility

for asylum. In so doing, the BIA relied on the IJ’s determinations that Kiflemariam

gave a confusing answer to whether she received medical treatment, that her

physical condition appeared to have greatly improved without explanation, and that

she did not otherwise meet the statutory requirements for asylum. The BIA

therefore affirmed the IJ’s denial of Kiflemariam’s application for asylum. This

9 petition followed.

III. Jurisdiction and Standard of Review

We have jurisdiction over Kiflemariam’s petition pursuant to 8 U.S.C. §

1252(a). We review the BIA’s factual determinations under the substantial

evidence test, and its legal conclusions de novo. Mejia v. U.S. Att’y Gen., 498 F.3d

1253, 1256 (11th Cir. 2007). Credibility determinations are reviewed under the

substantial evidence test and may not be overturned unless the record compels

reversal. Kueviakoe v. U.S. Att’y Gen., 567 F.3d 1301, 1304 (11th Cir. 2009)

(citing Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1230 (11th Cir. 2005)).

When reviewing a decision issued by the BIA, we review only that decision,

except where the BIA relied on the IJ’s opinion. Tang v. U.S. Att’y Gen., 578 F.3d

1270, 1275 (11th Cir. 2009). To the extent that the BIA’s decision adopts the IJ’s

reasoning, we also review the IJ’s decision. Id. Because the BIA here followed the

IJ’s reasoning that Kiflemariam was not eligible for asylum based on her incredible

testimony, we review both decisions.

IV. Discussion

To be eligible for asylum, an applicant must establish that she has suffered

past persecution, or has a well-founded fear of future persecution, in her country of

origin “on account of race, religion, nationality, membership in a particular social

10 group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). An alien who can

establish a history of past persecution based on political opinion creates a

presumption that she has a well-founded fear of future persecution. Sanchez

Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1232 (11th Cir. 2007). The government

can rebut this presumption by showing that, by a preponderance of the evidence, (1)

the conditions in the country have changed or (2) future persecution can be avoided

by relocating within the country if, “under all the circumstances, it would be

reasonable to expect the applicant to do so.” DeSantamaria v. U.S. Att’y Gen., 525

F.3d 999, 1007 (11th Cir. 2008) (quoting 8 C.F.R. § 208.13(b)(1)(i)). Asylum may

be granted on the basis of past persecution alone if the alien demonstrates (1)

“compelling reasons for being unwilling or unable to return to the country arising

out of the severity of the past persecution” or (2) “a reasonable possibility that he or

she may suffer other serious harm upon removal to that country.” Id. at 1007 n.4

(quoting 8 C.F.R. § 208.13(b)(1)(iii)).

The applicant’s testimony alone may suffice to establish eligibility for

asylum, if the testimony is credible and direct. Forgue v. U.S. Att’y Gen., 401 F.3d

1282, 1287 (11th Cir. 2005). “Conversely, an adverse credibility determination

alone may be sufficient to support the denial of an asylum application.” Id. Under

the REAL ID Act of 2005, 8 U.S.C. § 1158(b)(1)(B)(iii), an adverse credibility

11 determination may be based on the inherent implausibility of an applicant’s

testimony or its inconsistency with other evidence and testimony, considering the

totality of the circumstances. Mohammed v. U.S. Att’y Gen., 547 F.3d 1340, 1344

(11th Cir. 2008). However, an adverse credibility finding must be supported by

“specific, cogent reasons.” Tang, 578 F.3d at 1277 (quoting Forgue, 401 F.3d at

1287).

The record compels us to conclude that Kiflemariam gave credible testimony

about the persecution she suffered in Eritrea and its lasting effects. We therefore

reject the IJ’s adverse credibility determinations and the BIA’s order upholding

them.

The IJ’s conclusion that Kiflemariam’s testimony regarding whether she

sought medical treatment after her first detention was confusing, and therefore not

credible, has no basis in the record. Not less than four times, Kiflemariam

explained that she did not seek medical treatment immediately after being detained

and beaten, but, rather, used her nursing skills to treat herself and saw a physician

only when the pain persisted five months later. (AR at 182-83, 185-87.) Although

the record reflects some “back and forth” between the IJ and Kiflemariam, the

colloquy ended when the IJ confirmed Kiflemariam’s testimony, stating “[I]t

appears your answer is yes, you did [seek medical treatment], although not

12 immediately upon your release from detention,” to which she responded, “Yes . . . .

You are right.” (Id. at 187.) Considering all of the circumstances, any “confusion”

regarding this point was simply the natural by-product of testimony given through a

translator, not the mark of inconsistent testimony. See Sarr v. Gonzales, 474 F.3d

783, 794 & n.7 (10th Cir. 2007) (reversing BIA’s adverse credibility determination

and recognizing that “[a]sylum applicants rarely speak English, and their testimony

is plagued with the uncertainties of translation and cultural misunderstanding”);

Zavala-Bonilla v. INS, 730 F.2d 562, 566 (9th Cir. 1984) (rejecting BIA’s

determination that applicant’s testimony was not credible, “[d]espite a confusing

series of questions, objections, translations, and answers”). We find no basis, let

alone a specific, cogent one, for concluding that Kiflemariam’s testimony was not

credible.

Furthermore, in finding that Kiflemariam’s testimony was not credible, the IJ

relied on the fact that Kiflemariam’s answers seemed to confuse her war injuries

with the injuries from her first detention. However, Kiflemariam’s vacillation

between her shrapnel wounds and her detention injuries was a product of the IJ’s

own questions, which continued to raise Kiflemariam’s war injuries. We will not

accept an adverse credibility finding grounded in confusion that the IJ himself

caused.

13 We similarly reject the IJ’s finding that Kiflemariam’s ability to sit through a

four-hour hearing raised questions about the evidence that years prior, she suffered

severe medical problems to the point of incapacitation, and still requires medical

monitoring. Putting aside the obvious possibility that the passage of time may have

caused Kiflemariam’s physical condition to improve, the IJ never asked

Kiflemariam to explain the alleged discrepancy in her physical condition, and thus

Kiflemariam never proffered an explanation. To base an adverse credibility

determination on the apparent “miraculous” improvement in Kiflemariam’s

physical condition, when the IJ himself failed to request an explanation, is to create

an inconsistency where none in fact existed. Thus, we reject the IJ’s conclusion that

Kiflemariam exaggerated her condition as pure speculation unsupported by any

evidence. See Tang, 578 F.3d at 1278 (“It is appropriate for us to reverse when a

credibility determination is based solely on speculation and conjecture.”); Ming Shi

Xue v. BIA, 439 F.3d 111, 121 (2d Cir. 2006) (“[W]here the perceived

incongruities in an asylum applicant’s testimony are not plainly obvious, an IJ

cannot rely on them to support an adverse credibility ruling without first identifying

the alleged inconsistencies for the applicant and giving the applicant an opportunity

to address them.”); Kaur v. Ashcroft, 379 F.3d 876, 887 (9th Cir. 2004) (“An

adverse credibility finding is improper when an IJ fails to address a petitioner’s

14 explanation for a discrepancy or inconsistency.”).

We find, as a matter of law, that Kiflemariam was otherwise qualified for

asylum because she established compelling evidence of past persecution on account

of her political opinion – in the form of repeated detentions, harassing

interrogations, and beatings – and a well-founded fear of future persecution should

she return to Eritrea. See, e.g., Niftaliev v. U.S. Att’y Gen., 504 F.3d 1211, 1217

(11th Cir. 2007) (alien’s testimony “in and of itself” that he was arrested, detained

without food or water, interrogated, beaten, and threatened “after speaking out

against the . . . government” compelled a finding of past persecution); see also

Sanchez Jimenez, 492 F.3d at 1234 (“[A] well-founded fear of future persecution

can exist even if the applicant ‘only has a 10% chance of being shot, tortured, or

otherwise persecuted.’”) (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 440

(1987)). We therefore conclude that the BIA erred in affirming the IJ’s order.

Because the IJ found that Kiflemariam did not establish past persecution or a well-

founded fear of future persecution, he did not reach the issue of whether conditions

in Eritrea have changed or whether Kiflemariam could safely relocate to another

part of the country. Accordingly, we will remand to the BIA for a determination of

these issues.

V. Conclusion

15 For the foregoing reasons, we will reverse the IJ’s and BIA’s credibility

determinations, vacate the decisions, and grant the petition for review. Because we

conclude that Kiflemariam demonstrated that she suffered past persecution on

account of her political opinion, she is entitled to a presumption of future

persecution. The IJ and the BIA did not address whether the government rebutted

this presumption by showing by a preponderance of the evidence that the

oppressive conditions in Eritrea have changed or that Kiflemariam could avoid

future persecution by relocating within the country. Accordingly, we remand to the

BIA for a determination of these questions in the first instance.

PETITION GRANTED, VACATED AND REMANDED.