Shoafera v. Immigration & Naturalization Serv.

• Decision Date: 07 March 2000
• Docket Number: No. 98-70565,98-70565
• Citation: 228 F.3d 1070
• Parties: (9th Cir. 2000) NIGIST SHOAFERA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1070

228 F.3d 1070 (9th Cir. 2000)

NIGIST SHOAFERA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 98-70565

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted March 7, 2000--Pasadena, California

Filed September 7, 2000

Amended December 11, 2000

Gary Silbiger, Silbiger & Honig, Los Angeles, California, for the petitioner-appellant.

Ann V. Crowley and Paul Kovac, Office of Immigration Litigation, Department of Justice, Washington, DC, for the respondent-appellee.

On Petition for Review of an Order of the Board of Immigration Appeals, INS No.A72 439 539

Before: J. Clifford Wallace, Harry Pregerson, and Sidney R. Thomas, Circuit Judges.

PREGERSON, Circuit Judge:

Nigist Shoafera, a native and citizen of Ethiopia, petitions this court for review of a final order of the Board of Immigration Appeals ("BIA") denying her request for asylum and withholding of deportation. We have jurisdiction pursuant to 8 U.S.C. S 1105(a), as modified by the "transitional rules" under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). See Section 309(c)(4) of IIRIRA. We grant the petition and remand for further proceedings consistent with this opinion.

I

Shoafera, a thirty-one-year-old citizen of Ethiopia, is of Amharic ethnicity. She entered the United States on a visitor's visa in January 1990. On February 1, 1992, Shoafera filed an application for asylum and withholding of deportation. On December 22, 1995, Shoafera was placed in deportation proceedings under an Order to Show Cause. Shoafera conceded deportability at that time, but renewed her request for asylum and withholding of deportation.

A merits hearing was held before an Immigration Judge ("IJ") on October 9, 1996. At the hearing, Shoafera testified that she fears that she will be persecuted if she is returned to Ethiopia. Shoafera explained that when she was in Ethiopia she worked for a man named Hagos Belay, a Tigrean, who held a high-ranking position in her kebele.¹ One night, after a meeting of the kebele, Belay forced Shoafera to go to a local park where he beat her and raped her at gunpoint. After the rape, Belay left Shoafera in the park. She was physically unable to get up and walk home. Eventually, some people in the park found Shoafera and took her to the hospital. At the hospital, Shoafera was treated by Dr. Ethiopia Fikru. In support of her asylum claim, Shoafera submitted a medical report from Dr. Fikru that corroborated her testimony that she had been raped.

The hospital called Shoafera's brother, Berhanu, and informed him what had happened. Berhanu came to the hospital and Shoafera begged him to report the incident to the police. Initially he refused because he feared that if he reported the rape to the police, Belay would kill Shoafera. But Shoafera felt strongly that the rape should be reported and she convinced Berhanu to do so. The police arrested Belay, but released him from jail after only one month. Belay did not receive any further punishment.

Shoafera testified that she believed that Belay raped her because of her Amharic ethnicity. During her hearing, the following exchange occurred:

[Q.] Now, with regard to the rape, do you have any idea -and I know this is a difficult question, but do you have any idea why Hagos Belay did this to you?

[A.] I just -He probably was attracted to me. I don't know.

Q. Aside from the fact that he may have been attracted to you, can you think of any other circum stances or factors that might have made you an easier target for him, or someone who he felt he could do this to?

A. `Cause I'm an Amhara. If I was a Tigrean he wouldn't do it.

Shoafera's sister, Fere Hiuwof, a lawful permanent resident of the United States, also testified that Belay raped Shoafera because of her Amharic ethnicity.

While Belay was in jail, Shoafera continued to live at home in her kebele. But after the police released Belay, Shoafera moved to a different kebele, where she stayed with a friend. She testified that she did not feel safe in the other kebele because she learned that Belay was looking for her. Shoafera further testified that she did not believe that there was any protection for her in any part of Ethiopia. She testified that several months after Belay was released from police custody she left Ethiopia and came to the United States.

Belay currently works for the Tigry-dominated Ethiopian government. He is in charge of the kebele where Shoafera used to live. Belay continues to look for Shoafera and remains angry at her for reporting the rape to the police. Shoafera stated in a declaration, "I am sure that Hagos Belay will do any harm to me if he finds me in Ethiopia. His power now is more than what he had under the Mengistu regime."

Additionally, Shoafera and her sister both testified that Belay has used his political power and influence to keep Shoafera's brother, Berhanu, in prison. Berhanu was imprisoned in 1994 after attending a demonstration as a member of the All Amhara Peoples Organization ("AAPO"). The Ethiopian government never tried Berhanu for his alleged crime. Other AAPO members who attended the same demonstration have been released from prison. Shoafera's other brother, Nakati, also believes that Belay has used his political influence to ensure that Berhanu is not released from prison.

As part of the administrative record, Shoafera submitted materials documenting the conditions in Ethiopia. One report confirmed that rape remains a "pervasive social problem" in Ethiopia. Another document, the 1995 State Department Report on Ethiopia, noted that there is discord among various ethnic groups in Ethiopia and that some Amharas "have died in ethnic clashes." The State Department Report also acknowledged that "[a]t various times in recent years, ethnic clashes occurred in many parts of Ethiopia."

Despite the uncontested testimonial and documentary evidence, the IJ ruled that Shoafera was not eligible for asylum. In making his ruling, the IJ did not question Shoafera's credibility. In fact, the IJ stated, "The Court certainly finds that the respondent's claim and testimony is credible in regard to the incident which occurred to her." But the IJ concluded that Shoafera did not establish that Belay raped her on account of her Amharic ethnicity. Instead, the IJ concluded that Belay raped Shoafera because he was "a man who believed that he had the authority and impunity to carry out his sexual depravities." The BIA affirmed the decision of the IJ, concluding that "[a]lthough the respondent testified that she was raped because of her Amharic ethnicity, she did not adequately support this assertion." Shoafera timely petitioned this court for review of the BIA's final order.

II

Where the BIA conducts de novo review, as it did here, "our review is limited to the BIA's decision, except to the extent that the IJ's opinion is expressly adopted. " Garrovillas v. INS, 156 F.3d 1010, 1013 (9th Cir. 1998)."We will uphold the BIA's denial of asylum if it is supported by reasonable, substantial and probative evidence in the record. " Velarde v. INS, 140 F.3d 1305, 1309 (9th Cir. 1998) (citing INS v. EliasZacarias, 502 U.S. 478, 481 (1992)). Although review is limited to the administrative record, "we will consider the record as a whole, including evidence which contradicts the BIA's findings." Id. We accept Shoafera's testimony as undisputed because the IJ found her testimony credible and the BIA did not disagree. See Maini v. INS, 212 F.3d 1167, 1173 (9th Cir. 2000); Reyes-Guerrero v. INS, 192 F.3d 1241, 1244 (9th Cir. 1999).

To establish eligibility for asylum, an alien must show that he or she is a refugee within the meaning of 8 U.S.C. S 1101(a)(42)(A). To establish refugee status, Shoafera must show that she is unable or unwilling to return to her home country "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. " Id. "A well-founded fear of future persecution may be established by proving either past persecution or `good reason' to fear future persecution." Navas v. INS, 217 F.3d 646, 654 (9th Cir. 2000).

"It is well-settled law of this circuit that eligibility for asylum may be based on past persecution alone, even absent a well-founded fear of future persecution." Lopez-Galarza v. INS, 99 F.3d 954, 959 (9th Cir. 1996) (citations omitted). "Persecution" is defined as " `the infliction of suffering or harm upon those who differ (in race, religion or political opinion) in a way regarded as offensive.' " Id. (quoting Prasad v. INS, 47 F.3d 336, 339 (9th Cir. 1995)). It is clear that rape or sexual assault "may constitute persecution." Id.; see also Lazo-Majano v. INS, 813 F.2d 1432 (9th Cir. 1987), overruled on other grounds by Fisher v. INS, 79 F.3d 955 (9th Cir. 1996) (en banc). Here, Shoafera established that she suffered past persecution because she was raped by a government official, Hagos Belay. Thus, the issue in this case is whether Shoafera established that she was persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion. See Lopez-Galarza , 99 F.3d at 958. To do so, Shoafera "must present some evidence, direct or circumstantial, of the persecutor's motive." Id.

Shoafera contends that she suffered persecution on account of her Amhara ethnicity.² Shoafera testified that Belay raped her, "[c]ause I'm an Amhara. If I was a Tigrean he wouldn't do it." Because Shoafera testified credibly,³ and the government failed to produce any contradictory evidence, all facts testified by the Shoafera "must be taken as true." Velarde, 140 F.3d at 1312. See also Ladha v. INS, 215 F.3d 889, 900 (9th Cir. 2000) ("when an alien credibly testified to certain facts, those facts are deemed true"); Yazitchian v. INS, 207 F.3d 1164, 1168 (9th Cir. 2000) ("Because the immigration...