Terefe v. Gonzales

133 F. App'x 413

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 27, 2005
• Docket: No. 03-71988
• Status: Published

Opinions

MEMORANDUM

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Melkamsera Terefe, a citizen of Ethiopia, petitions for review of the Board of Immigration Appeals’ (“BIA”) affirmance of an immigration judge’s (“IJ”) denial of her applications for asylum and withholding of removal, and request for relief under the Convention Against Torture (“CAT”). We vacate and remand to the BIA for further consideration in light of our intervening decisions, Kebede v. Ashcroft, 366 F.3d 808, 811 (9th Cir.2004) (failing to mention a rape in an initial asylum interview will not support an adverse credibility determination when the alien has persuasively explained that the rape was not reported because of shame) and Singh v. Gonzales, 403 F.3d 1081, 1089 (2005) (holding that eonelusory summaries of an asylum interview are “not substantial record evidence supporting the IJ’s adverse credibility ground” unless accompanied by supporting evidence).

Terefe claims that her political activities in Ethiopia led to her arrest and detention for fifteen days in 1992. During this period, Terefe asserts that she was raped in two separate incidents. The IJ determined that Terefe was not credible and rejected her asylum and CAT claims on this basis. In an oral opinion, the IJ primarily reasoned that Terefe’s failure to mention the rapes in her first asylum application and interview completely undermined her credibility. In further support of his adverse credibility finding, the IJ noted that, during the initial asylum process, Terefe failed to mention her brother’s ongoing incarceration. He additionally found that Terefe’s demeanor led him to conclude that Terefe was not credible.

Subsequent to the IJ’s decision and the BIA’s affirmance, we held that the failure of an Ethiopian woman seeking asylum to mention a rape in her initial asylum application cannot serve as the basis for an adverse credibility determination when she has persuasively explained that the rape was not initially reported because of shame. Kebede, 366 F.3d at 811. Here, Terefe testified that she did not discuss the rapes with anyone because she suffered from Post Traumatic Stress Disorder and was ashamed. This testimony was supported by a letter from her psychologist as well as by the testimony of her cousin. Like the asylum seeker in Kebede, Terefe is an Ethiopian woman.

We have also recently held that a written summary of an alien’s initial interview with an asylum officer is “not sufficient evidence of what [the alien] said to permit evaluation of an asserted conflict” absent testimony by the asylum interviewer, a transcript of the proceedings, contemporaneous notes of the proceedings, or information about whether a translator was made available to the alien during that initial interview. Singh v. Gonzales, 403 F.3d 1081, 1087-1088 (2005). Here, to demonstrate an asserted conflict in evidence, the IJ also partially relied on a summary of Terefe’s initial interview with an asylum officer, which was provided in an “Intent to Deny” notice sent by the INS to Terefe. As in Singh, there is little information about the reliability of the summary contained in Terefe’s “Intent to Deny” notice because the officer who conducted the interview did not testify. Nor did the officer provide detailed notes from the interview, a transcript, or other helpful information about the circumstances under which the interview was conducted.

The IJ in this case did not have the benefit of our decisions in Kebede and Singh when he ruled in this case. We vacate and remand for reconsideration in light of Kebede and Singh.

VACATED AND REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.