411 F.3d 135 (3rd Cir. 2005), 03-2917, Fiadjoe v. Attorney General of United States

Docket Nº:03-2917, 04-1554.
Citation:411 F.3d 135
Party Name:Lorraine FIADJOE Petitioner, v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent.
Case Date:June 17, 2005
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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411 F.3d 135 (3rd Cir. 2005)

Lorraine FIADJOE Petitioner,

v.

ATTORNEY GENERAL OF THE UNITED STATES, Respondent.

Nos. 03-2917, 04-1554.

United States Court of Appeals, Third Circuit

June 17, 2005

Argued Nov. 19, 2004.

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David E. Piver, Esq. (Argued), W. John Vandenberg, Esq., The Law Office of David E. Piver, Wayne, PA.

Peter D. Kessler, Esq., Assistant Attorney General, Civil Division, Terri J. Scadron, Esq., Assistant Director, Jeffrey J. Bernstein (Argued), Leslie McKay, Attorneys, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C.

Before: ROTH, SMITH, Circuit Judges and DEBEVOISE [*], Senior District Court Judge.

DEBEVOISE, Senior District Judge.

Petitioner, Lorraine Fiadjoe, petitions for review of orders of the Board of Immigration

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Appeals ("BIA") denying her application for asylum, withholding of removal and relief under the Convention Against Torture and denying her motion for reconsideration. With the exception of an eleven year interval, from 1978, when Ms. Fiadjoe was seven years of age, until her flight from her native Ghana to the United States in March 2000, Ms. Fiadjoe was held as a slave of her father, a priest of the Trokosi sect, who, in accordance with the tenets of the sect, forced his daughter to work for him and abused her physically and sexually. Ms. Fiadjoe sought asylum and other relief on the ground that if she were returned to Ghana she, as one of the women subject to the practices of the Trokosi sect, would likely once again become subject to her father's bondage and abuse, a consequence that Ghanian government authorities were unable or unwilling to prevent.

Both the Immigration Judge ("IJ") and the BIA found that Ms. Fiadjoe's testimony was not credible, and the BIA found that Ms. Fiadjoe failed to establish that the government of Ghana was either unwilling or unable to control her father's sexual abuse. We conclude that these findings are not supported by reasonable, substantial and probative evidence on the record considered as a whole. We will grant the petition and remand the case for a new hearing and development of the record before a different IJ.

I. Procedural Background

On March 11, 2000, using a passport bearing the name of another person, petitioner, Lorraine Fiadjoe, entered the United States. She is a member of the Ewe tribe and a native and citizen of Ghana. She was detained as an arriving alien and interviewed. Upon her refusal to be sent back to Ghana, the immigration authorities transferred her to the York County [Pennsylvania] Prison.

On March 30 Asylum Officer James L. Reaves conducted an Asylum Pre-Screening Interview of Ms. Fiadjoe, after which he found that she had established a significant possibility of a claim for asylum based on her membership in a particular social group (unmarried women over 25 in Ghana). He also found that Ms. Fiadjoe had established a credible fear of persecution or torture.

On the same day the Immigration and Naturalization Service ("INS") 1 charged Ms. Fiadjoe with removability under §§ 212(a)(6)(C)(i) and 212(a)(7)(A)(i)(I) of the INA, 8 U.S.C. §§ 1182(a)(6)(C)(i), (a)(7)(A)(i)(I) (2003) and issued a notice to appear. At a June 1, 2000 hearing before an IJ Ms. Fiadjoe conceded that she was removable under § 212(a)(7)(A)(i)(I) of the INA for being an intending immigrant not in possession of a valid visa or other entry document.

Ms. Fiadjoe filed applications for asylum, withholding of removal, and protection under the Convention Against Torture, Article 3 of the Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, Annex 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/39/51 (1984) ("CAT"). The IJ, Donald Vincent Ferlise, held an evidentiary hearing on April 30, 2002, after which he denied Ms. Fiadjoe's application for relief and ordered her removed to Ghana.

Ms. Fiadjoe filed a timely appeal with the BIA. On June 6, 2003 the BIA dismissed the appeal. Ms. Fiadjoe filed a

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timely petition for review of the BIA's decision in this court and subsequently filed a motion with the BIA seeking reconsideration of the BIA's June 6 order. On February 18, 2004 the BIA denied the motion to reconsider. Ms. Fiadjoe filed a petition for review of the BIA's February 18 decision. That petition has been consolidated with the first petition.

II. Petitioner's Evidence

Ms. Fiadjoe's claims for relief stem from her assertion that from age seven until she fled from Ghana, with an eleven year interval from 1978 until 1989, her father held her as a slave, subject to physical beatings and frequent rape, pursuant to the tenets of the Trokosi religion, of which her father was a priest.

The nature and existence of the Trokosi practices are described in a number of documents that are in the record. The United States Department of State Country Report on Human Rights Practices in Ghana released in February 2001 (the "State Department Report" or the "Report") is one example. In a summary statement the Report states, "Violence against women is a serious problem. Traditional practices, including a localized form of ritual servitude (Trokosi) practiced in some rural areas, still result in considerable abuse and discrimination against women and children." The Report further noted that "[v]iolence against women, including rape and domestic violence, remains a significant problem. A 1998 study revealed that particularly in low-income, high-density sections of greater Accra, at least 54 percent of women have been assaulted in recent years," and that "[w]omen, especially in rural areas, remain subject to burdensome labor conditions and traditional male dominance."

The State Department Report described in some detail Trokosi practices:

Although the Constitution prohibits slavery, it exists on a limited scale. Trokosi, a traditional practice found among the Ewe ethnic group and in part of the Volta Region, is an especially severe human rights abuse and an extremely serious violation of children's and women's rights. It is a system in which a young girl, sometimes under the age of 10, is made a slave to a fetish shrine for offenses allegedly committed by a member of the girl's family. In rare instances, boys are offered. The belief is that, if someone in that family has committed a crime, such as stealing, members of the family may begin to die in large numbers unless a young girl is given to the local fetish shrine to atone for the offense. The girl becomes the property of the fetish priest, must work on the priest's farm, and perform other labors for him. Because they are the sexual property of the priests, most Trokosi slaves have children by the priests. Although the girls' families must provide for their needs such as food, most are unable to do so. There are at least 2,200 girls and women bound to various shrines in the Trokosi system, a figure that does not include the slaves' children. Even when freed by her fetish priest from the more onerous aspects of her bondage, whether voluntarily or as a result of intervention by activists, a Trokosi women generally has few marketable skills and little hope of marriage and typically remains bound to the shrine for life by psychological and social pressure arising from a traditional belief that misfortune may befall a Trokosi woman's family or village if she abandons her obligations to the shrine. When a fetish slave dies, her family is expected to replace her with another young girl, thus perpetuating the bondage to the fetish shrine from generation to generation.

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In 1998 Ghana's Parliament passed legislation that, among other provisions designed to protect women, banned the practice of "customary servitude" (known as Trokosi). After passage of this legislation, the Report states, "[t]he CHRAJ and International Needs have had some success in approaching village authorities and fetish priests at over 316 of the major and minor shrines, winning the release of 2,800 Trokosi slaves to date and retraining them for new professions." However, as of the time of the report (2000), "[t]here are at least 2,200 girls and women bound to various shrines in the Trokosi system, a figure that does not include the slaves' children."

Despite the 1998 legislation, as of the year 2000, "[t]he Government has not prosecuted any practitioners of Trokosi, and in August 1999, a presidential aide criticized anti-Trokosi activists for being insensitive to indigenous cultural and 'religious' practices." The Statement Department Report recites at great length the terrible abuses committed by Ghana's police, noting that "[i]n recent years, the police service in particular has come under severe criticism following incidents of police brutality, corruption, and negligence." With respect to the police and their reaction to violence against women, the Report recites "[v]iolence against women, including rape and domestic violence, remains a significant problem ... a total of 95 percent of the victims of domestic violence are women, according to data gathered by the FIDA. These abuses generally go unreported and seldom come before the courts. The police tend not to intervene in domestic disputes."

It is against this well-documented background that Ms. Fiadjoe's account of her own experiences unfolds. These events are described in her affidavit in support of her asylum application (Form I-589) and in her April 30, 2002 hearing testimony. They are described in the report of the psychologist who treated her for the trauma these events caused.

Ms. Fiadjoe was born a member of the Ewe tribe on March 17, 1971 in Accra, Ghana. When she was a young child her parents separated. She was too young at that time...

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