Solomon v. Gonzales

Decision Date21 July 2006
Docket NumberNo. 05-9522.,05-9522.
Citation454 F.3d 1160
PartiesHaimanot SOLOMON, v. Alberto R. GONZALES, United States Attorney General, Respondent.
CourtU.S. Court of Appeals — Tenth Circuit
454 F.3d 1160
Haimanot SOLOMON,
v.
Alberto R. GONZALES, United States Attorney General, Respondent.
No. 05-9522.
United States Court of Appeals, Tenth Circuit.
July 21, 2006.

Page 1161

Nathan Kunz, Student Attorney, supervised by Timothy M. Hurley (Timothy M. Hurley on the briefs), University of Denver, Sturm College of Law, Federal Appellate Clinic, Denver, Colorado, for Petitioner.

Elizabeth A. Weishaupl, Assistant United States Attorney (William J. Leone, United States Attorney, with her on the brief), Office of the United States Attorney, Denver, Colorado, for Respondent.

Before McCONNELL, ANDERSON, and TYMKOVICH, Circuit Judges.

McCONNELL, Circuit Judge.


Haimanot Solomon, a former resident of Ethiopia and Eritrea of mixed ancestry, seeks asylum in the United States, claiming that she was expelled from Ethiopia on account of her Eritrean paternity and was persecuted in Eritrea on account of her Ethiopian maternity, language, and upbringing. She challenges the decision of the Immigration Judge (IJ), which was affirmed by the Board of Immigration Appeals (BIA), that she did not present credible claims for asylum, restriction on removal under the Immigration and Nationality Act (INA), and withholding of removal

Page 1162

under the United Nations Convention Against Torture. Because the IJ's adverse credibility determination was not based on "substantial evidence" and supported by "specific, cogent reasons," we GRANT the petition for review, VACATE the decision of the BIA affirming the IJ's order, and REMAND to the BIA for further proceedings.

I. Factual and Procedural Background

In 1979, Haimanot Solomon was born to an Ethiopian mother and Eritrean father in Addis Ababa, capital of Ethiopia.1 She lived in Ethiopia until she was 19. One night in 1998, she says, armed officers seized and imprisoned her, because her father is Eritrean. She recounts being questioned by the police and being taken on a three-day bus journey to the Eritrean border. At the end of the journey, she was forced across mined ground and taken by United Nations workers to a refugee camp. Ms. Solomon was then conscripted into the Eritrean military and sent for training at Sawa, a military camp. Ms. Solomon tells of extreme mistreatment— being beaten, tied hand and foot and left facing the sun, forced to carry containers of water back and forth, and made to sleep on the ground amid sheep's blood. Ms. Solomon attributes this mistreatment to her being part Ethiopian, a fact easily discovered at the military camp because she had not yet learned Tigrinya, the dominant language in Eritrea. After several years of mistreatment, Ms. Solomon deserted. A bus driver smuggled her to Asmara, and from there a friend arranged for her to leave the country. On August 15, 2001, she traveled to Miami with a man named Kubrum, who left her with an Eritrean passport that was missing thirteen pages, and she was promptly taken into custody by U.S. immigration officials. Ms. Solomon was then paroled to Denver, where one of her sisters lives.

On February 12, 2002, Ms. Solomon appeared for a hearing and requested political asylum, restriction on removal, and relief under the Convention Against Torture. On May 22, 2002, she filed her application for asylum. On September 3, 2003, the Immigration Judge (IJ) held the merits hearing for Ms. Solomon's claims, at which she testified at length regarding her experiences and submitted into evidence, among other materials, her Eritrean passport, an affidavit from her half-sister corroborating her mother's Ethiopian citizenship, and the then-current State Department country report on Eritrea. She explained that her mistreatment in Eritrea was due to her mixed Ethiopian ancestry and upbringing. Her testimony was delivered in Amharic, the principal and official language of Ethiopia. During the hearing, the IJ asked whether she had any documents showing she was from Ethiopia. Ms. Solomon answered that she had possessed an ID card, but that "when I left Ethiopia I left empty-handed [and][w]hen I left Eritrea I left emptyhanded." R. 162-63.

The IJ announced his oral decision at the conclusion of the hearing, rejecting all of Ms. Solomon's claims for relief. The decision was based entirely on an adverse credibility finding. The IJ apparently disbelieved Ms. Solomon's testimony that one of her parents is Ethiopian and that she was raised in Ethiopia. The IJ expressed

Page 1163

no skepticism regarding Ms. Solomon's account of her mistreatment in Eritrea.

Ms. Solomon filed an appeal with the Board of Immigration Appeals (BIA). As attachments to her brief, she submitted substantial evidence of her Ethiopian parentage and upbringing: a report card from the Ethiopian Ministry of Education, a baptismal certificate from the Ethiopian Orthodox Tewahedo Church, a statement from an Ethiopian official that she was the daughter of Mrs. Adanech Alelmayehu of Kebele, Ethiopia, and a statement from Mrs. Alelmayehu that Ms. Solomon was her daughter. The BIA affirmed the IJ's decision in a single-member brief opinion. The BIA did not consider the additional documentary evidence because it was not presented to the IJ.

Ms. Solomon then filed a timely petition for review in this Court.

II. Discussion

A. Standard of Review

Ms. Solomon seeks three kinds of relief—asylum, restriction on removal, and withholding of removal under the Convention Against Torture. To be entitled to asylum, Ms. Solomon must establish that she is a "refugee[] as defined in 8 U.S.C. § 1101(a)(42)(A), and then persuade the Attorney General to exercise his discretion to grant relief under 8 U.S.C. § 1158(b)." Batalova v. Ashcroft, 355 F.3d 1246, 1254 (10th Cir.2004). To establish that she is a refugee, Ms. Solomon must show that she is unwilling or unable to return to Eritrea because of past persecution or a "wellfounded fear" of future persecution, which is "on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A). If Ms. Solomon cannot establish a well-founded fear under the asylum standard, she will necessarily fail to meet the higher standards required for restriction on removal under the INA or withholding of removal under the Convention Against Torture. Uanreroro v. Gonzales, 443 F.3d 1197, 1202 (10th Cir.2006).

Our review of this matter might seem to be colored by the fact that, in her appeal to the BIA, Ms. Solomon submitted such powerful documentary evidence of her Ethiopian parentage and upbringing that there can be no serious doubt that the IJ's disbelief of her claim on this score was wrong. Knowing that Ms. Solomon has provided her baptismal certificate, her Ethiopian school report card, a letter from her mother, and a statement from an Ethiopian official that her mother is an Ethiopian citizen, we cannot doubt that Ms. Solomon is, in fact, of partial Ethiopian parentage and was raised in Ethiopia. The remainder of her story—that she was expelled to Eritrea on account of her father's Eritrean nationality, that she was conscripted into the Eritrea military, and that she was severely abused and mistreated in the Eritrean military on account of her perceived Ethiopian nationality—has not been questioned, at least at this stage of the proceedings. We are frankly surprised that the government persists in defending the BIA's decision, rather than acquiescing in a remand in the interest of justice.

But as an appellate court our authority is tightly circumscribed by statute. The question before us is not whether Ms. Solomon is of Ethiopian ethnicity, whether she suffered persecution on that account, or whether she is entitled to asylum, but solely whether the decision of the BIA was "supported by reasonable, substantial and probative evidence on the record as a whole." Krastev v. INS, 292 F.3d 1268, 1275 (10th Cir.2002); see Yuk v. Ashcroft, 355 F.3d 1222, 1233 (10th Cir.2004).2

Page 1164

Moreover, the U.S. Citizenship and Immigration Services (formerly the Immigration and Naturalization Service) properly has procedural rules governing the introduction of evidence, and under those rules the baptismal certificate, the report card, and the statements from Ms. Solomon's mother and the Ethiopian official were not timely submitted and are not an official part of the record. See Matter of Fedorenko, 19 I. & N. Dec. 57, 74 (BIA 1984). Ms. Solomon's counsel apparently did not move for a continuance before the IJ to enable her to obtain and submit additional documentation, or move before the BIA to reopen the proceeding for receipt of new evidence. Our task, therefore, is to determine whether the BIA's affirmance of the IJ's credibility finding against Ms. Solomon was supported by substantial evidence, based on the record as it then existed.

The courts of appeals have frequently noted the inherent problems with credibility determinations in asylum cases. See, e.g., Djouma v. Gonzales, 429 F.3d 685, 687-88 (7th Cir.2005) (noting the difficulty of determining credibility and the lack of empirical evidence for when applicants are lying or telling the truth). Asylum applicants rarely speak English, and their testimony is plagued with the uncertainties of translation and cultural misunderstanding. They are generally unfamiliar with American procedures and wary of lawyers and officials; often they are not well served even by their own legal counsel. Their escape from persecution...

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