Ememe v. Ashcroft, 03-1386.

• Decision Date: 12 February 2004
• Docket Number: No. 03-1386.,03-1386.
• Citation: 358 F.3d 446
• Parties: Feruz Y. EMEME, Petitioner, v. John D. ASHCROFT, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

358 F.3d 446

Feruz Y. EMEME, Petitioner, v. John D. ASHCROFT, Attorney General of the United States, Respondent.

No. 03-1386.

United States Court of Appeals, Seventh Circuit.

Argued December 5, 2003.

Decided February 12, 2004.

Babatunda A. Irukera (argued), Olusola O. Oyeyemi, Chicago, IL, for Petitioner.

George P. Katsivalis, Department of Homeland Security, Office of the District Counsel, Chicago, IL, Hillel R. Smith (argued), Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before FLAUM, Chief Judge, and MANION and WILLIAMS, Circuit Judges.

FLAUM, Chief Judge.

Feruz Y. Ememe, a native and citizen of Ethiopia, petitions for review of a final order of removal issued by the Board of Immigration Appeals on January 17, 2003, summarily affirming an immigration judge's order denying her application for asylum and withholding of removal. The immigration judge rejected Ememe's testimony because he found that it was not supported by any corroborating evidence, and further because he found it inconsistent with information she had given at her credible fear interview. Ememe's credible fear interview was conducted through a translator of Italian, whereas her testimony before the immigration judge was aided by a translator of Amharic, Ememe's native language. Yet, absent from the immigration judge's assessment of Ememe's credibility was any consideration of Ememe's ability to comprehend the questions posed at the credible fear interview. Because we conclude that a determination of Ememe's Italian language skills is of crucial import to the disposition of her asylum and withholding of removal applications, we remand for further proceedings.

I. Background

According to her testimony before the immigration judge, Feruz Ememe is a twenty-seven year-old ethnic Oromo from Ethiopia who claims to have been tortured while detained by the Mengistu and Tigrian regimes. She seeks asylum on the basis of her Oromo ethnicity and the Ethiopian government's alleged persecution of her family and herself.

Ememe testified that she was born in Addis Ababa, Ethiopia into the Oromo tribe, and that she is a native speaker of the Amharic language. She stated that she had six years of formal education in Ethiopia. Ememe represented that her father was a supporter of the Oromo Liberation Front ("OLF"), and that he was arrested for fundraising for the OLF by the Tigrian Liberation Front ("TLF") government on February 21, 1990. The following day, the police returned to arrest Ememe's mother, but she could not be found. Ememe testified that the TLF officers arrested Ememe and her brother, allegedly because of their Oromo ethnicity.

Ememe testified that she was detained for five months. During the second month of her detention, she alleges that she was raped by a police officer, rendering her unconscious. Three weeks later, the police officer returned with two other police officers, all of whom she claims raped her. Ememe stated that she became sick and was taken to the prison hospital, where it was determined that she was pregnant. She represented that she miscarried the pregnancy a few months later. Ememe's mother eventually arranged for Ememe to be released from detention, according to her testimony.

Ememe further testified that, upon her release from prison, she learned that her father had been beaten to death in prison, and that her brother's whereabouts were unknown. Ememe related that, in 1992, her mother was arrested, and she decided to leave Ethiopia. Ememe fled to Italy with the aid of her sister who was living there. Shortly after arriving there, Ememe said she learned that her mother had died in prison, and that her sister had a heart attack and passed away upon learning of the death of their mother. At her sister's funeral, Ememe believes that she saw one of the police officers who had raped her while she was detained in Ethiopia.

Ememe testified that she worked as a housekeeper in the home of an Italian woman during the seven years that she spent in Italy. She explained that she rarely left her employer's home because she was depressed and scared. In 1999, Ememe's Italian employer procured a fraudulent Italian passport for her, and Ememe departed from Italy for the United States. She arrived at O'Hare International Airport on July 19, 1999. Upon arrival, Immigration and Naturalization Services ("INS") officers interviewed her with the aid of an Italian translator.

Subsequently, on July 29, 1999, an asylum officer of the INS interviewed Ememe to determine whether she had a credible fear of returning to Ethiopia. Ememe was represented by counsel at the interview, and Ememe claims that she asked her attorney to obtain an Amharic language interpreter. When the attorney determined that no Amharic interpreter was available from the INS telephone translator service, Ememe was furnished with an Italian translator. Before the immigration judge, Ememe testified: "I was able to explain myself in the Italian language ... but I, I don't express myself as I do in my own language. That's a difficulty that I had [during the credible fear interview]." Ememe also explained that "there are some mistakes, some misunderstandings on the — either on my part, or on their part, but it's not correct that — what the statement has been written."

The transcript of this interview shows that the asylum officer asked Ememe seventy-one questions, most of which were pre-prepared. Ememe answered the majority of the questions with one-word or short answers, although a few of her answers consisted of one or two sentences. Relevant selections from the transcript are excerpted as follows:

Q: What languages do you speak?

A: ITALIAN.

Q: What is the highest level of formal education that you completed?

A: IN ETHIOPIA TWELVE YEARS OF SCHOOL.

Q: So far, have you been able to understand me?

A: YES.

Q: Are your parents alive?

A: NO, BOTH DEAD.

Q: Where is your family (spouse/children/parents) now?

A: NO FAMILY MEMBERS.

Q: What race or ethnicity are you?

A: AMHAERIC.

Q: Have you ever been arrested in your country?

A: NO.

Q: Have you ever been a member of any political party or organization in your home country?

A: NO, BUT MY FAMILY WAS ACCUSED OF GIVING MONEY TO OROMO ORGANIZATION AND THE GOVERNMENT KILLED MY FATHER AND THEY PUT ME IN JAIL FOR FIVE MONTHS WITH LITTLE TO EAT. MY MOTHER BAILED ME OUT AND MY SISTER HELPED ME ESCAPE TO ITALY WHERE SHE LIVED. MY BROTHER WAS ALSO IN PRISON BUT MY MOTHER COULD NOT BAIL HIM OUT. MY MOTHER WAS SHORTLY PUT IN JAIL WHERE SHE DIED IN PRISON.

Q: Why did you leave your country?

A: I WAS GOING TO SCHOOL AND DETAINED FOR ONE DAY AND THEN I WAS PICKED UP AT HOME BY FOUR POLICEMAN WITH THEIR FACES COVERED AND TAKEN TO THE PRISON FOR FIVE MONTHS.

Q: Why were you arrested?

A: THEY DID NOT TELL ME.

Q: What happened to you in prison?

A: THEY PUT ME IN A SMALL ROOM AND FEED [sic] ME ONCE A DAY WITH ONE GLASS OF WATER.

Q: Do you think that anyone ever tried to coerce or intimidate you into doing something you didn't want to do?

A: YES, THEY TRIED TO RAPE ME WHEN I WAS PUT IN THE JAIL.

Q: Have your experiences affected you mentally or emotionally?

A: YES, VERY HORRIBLE MEMORIES.

Q: Do you believe that you have suffered mental or emotional torture?

A: YES, BECAUSE I LOST MY FAMILY, ESPECIALLY LOOSING [sic] MY MOTHER.

The asylum officer determined that Ememe had a credible fear of returning to Ethiopia and charged her as an alien who attempted to enter the United States by fraud, and as an alien who was not in possession of a valid immigrant visa or other entry document. Ememe conceded her removability before an immigration judge. Subsequently, on July 30, 2001, Ememe testified before the immigration judge.

At the hearing, Ememe chronicled the events that led to her arrival in the United States, as summarized above. She submitted the following documentation in support of her claim: an Amnesty International News Release from November 1997 that reports a "government crackdown against alleged supporters of the Oromo Liberation Front"; the Amnesty International 1999 Ethiopia Annual Report; the United States Department of State 1999 Country Report on Human Rights Practices which states that the "government continued to detain persons suspected of sympathizing with or being involved with the OLF"; and a letter from Reverend Alvorson, the head of the Lutheran World Relief office in Chicago, attesting to a "flury" of arrests, jailings, disappearances of Oromo people in 1997. Ememe also submitted a diagnostic evaluation from the Marjorie Kovler Center for the Treatment of Survivors of Torture, which states that Ememe suffers from chronic post-traumatic stress disorder, major depressive disorder and headaches. Ememe attempted to admit into evidence a birth certificate issued in 1997, but the immigration judge excluded it on the grounds that it was fabricated, and that it had not been presented to the credible fear officer. Ememe testified that she had no documents to corroborate her testimony regarding her seven years of employment in Italy, her sister's death or funeral in Italy, the death of either of her parents, or her Oromo ethnicity.

The immigration judge concluded that three aspects of Ememe's claim warranted denial of her application. First, the immigration judge found Ememe's testimony not believable solely because of the perceived inconsistencies between Ememe's initial statement at the credible fear interview and her testimony before him. Second, the immigration judge noted that Ememe provided no documents to corroborate her testimony. Lastly, the immigration judge concluded that Ememe did not otherwise establish that she had endured past persecution or had a well-founded fear of future persecution. Thus, the immigration judge denied Ememe's applications for asylum, withholding of removal, and protection under the Convention Against Torture.

Ememe appealed the...