Zeru v. Gonzales

• Decision Date: 19 September 2007
• Docket Number: No. 06-1399.,No. 06-2345.,06-1399.,06-2345.
• Citation: 503 F.3d 59
• Parties: Minya K. ZERU and Russom B. Ghebrai, Petitioners, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — First Circuit

503 F.3d 59

Minya K. ZERU and Russom B. Ghebrai, Petitioners, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.

No. 06-1399.

No. 06-2345.

United States Court of Appeals, First Circuit.

Submitted June 4, 2007.

Decided September 19, 2007.

Howard A. Silverman and Ross, Silverman & Levy LLP on brief for petitioners.

Jeanette Kain, Harvey Kaplan, and Kaplan, O'Sullivan & Friedman on brief, for Advocates for Survivors of Torture and Trauma et al., amici curiae.

Eric W. Marsteller, Attorney, Peter D. Keisler, Assistant Attorney General, and M. Jocelyn Lopez Wright, Assistant Director, U.S. Department of Justice, on brief for respondent.

Before BOUDIN, Chief Judge, TORRUELLA and LYNCH, Circuit Judges.

LYNCH, Circuit Judge.

Petitioners Minya Zeru and her husband, Russom Ghebrai, both natives and citizens of Eritrea, applied for asylum on the basis of past persecution and a fear of future persecution. The petitioners premised their application on government harassment of Zeru due to her membership in an organization that advocated Eritrean independence when that country belonged to Ethiopia; the organization now opposes the incumbent Eritrean government. Following hearings conducted over the course of almost five years, an Immigration Judge (IJ) found petitioners' testimony to be not credible, that they had not established past persecution, and that, in any event, there was no basis for a claim of future persecution. The IJ thus denied the asylum application. The Board of Immigration Appeals (BIA) affirmed in a per curiam order.

Zeru and Ghebrai moved to reopen by challenging the credibility determination and alleging ineffective assistance of counsel during the asylum appeal to the BIA. The BIA denied the motion.

Zeru and Ghebrai petition for review of both the denial of asylum and the denial of the motion to reopen. The petitions are supported by an amicus brief on behalf of various groups concerned with the rights of refugees and torture victims. We affirm both of the BIA orders and deny the petitions for review.

I.

A. Denial of Claims for Relief

Zeru arrived in the United States on December 20, 1994. Her non-immigrant business visa allowed her to remain in the United States until July 20, 1995. In October 1995, she filed for asylum and for withholding of removal and was interviewed by an asylum officer. Zeru's case was transferred to the Immigration Court. In February 1998, both Zeru and Ghebrai, who had overstayed his visa as well, received Notices to Appear charging them with removability. Zeru and Ghebrai conceded removability, but both sought asylum, withholding of removal, voluntary departure, and relief under the Convention Against Torture (CAT) based on Zeru's assertions of political persecution.

An IJ heard testimony from Zeru and Ghebrai on five occasions between January 20, 1999, and March 21, 2002.¹ In those initial hearings before the original IJ, Zeru testified to the following facts. She was born in 1968 in Massawa, then a part of Ethiopia. From the age of fifteen, Zeru began pamphleteering and engaging in fundraising activities on behalf of the Eritrean Liberation Front-Revolutionary Council (ELF-RC), a political group devoted to Eritrean independence and the establishment of a multi-party democratic system of government. Zeru kept her political activities secret from her family, fearing retribution from various political opponents. One rival separatist group in particular, the Eritrean Peoples' Liberation Front (EPLF), opposed the ELF-RC's agenda in favor of single-party rule.

Zeru testified that she was arrested in 1987 by Ethiopian soldiers acting on a tip from the EPLF, and endured a six-month period of imprisonment ending on January 27, 1988. She testified that she was raped, and that she was beaten numerous times by her jailors. Following her release, Zeru spent six months in outpatient treatment for depression in Ethiopia.

Within a year of her release from imprisonment, Zeru resumed fundraising for the ELF-RC. By that time, she had met Ghebrai, a physician who worked in a state-run hospital. Zeru testified that she did not tell Ghebrai about her political activities or her prior imprisonment. Zeru and Ghebrai testified that they were married in January 1990.

The EPLF defeated the Ethiopian military in 1991 and took power in Eritrea. Zeru testified that Eritrean security forces (according to Zeru, effectively the same organization as the former EPLF) began harassing her in 1993, following a failed coup attempt. On two occasions, security officers detained Zeru and interrogated her in security forces offices near her import business in Asmara. Then, in September 1994, Eritrean officers detained Zeru for a ten-hour interrogation. According to testimony that Zeru gave in August 1999, one of her interrogators held a gun to her head and threatened to kill her. Zeru testified that she had "never felt worse" than during that encounter.

After the September 1994 incident, Zeru sought the advice of a friend who worked as a secretary with the Eritrean security forces. In November, the friend warned her that her name had appeared on a list of ELF-RC members, and that she was in grave danger. Leaving the country, her friend said, was her "only option." At that point, Zeru told Ghebrai about her political activities and her history of harassment by government officials. Zeru testified that she obtained a visa and passport through her secretary friend and left Eritrea. This was more than six years after her 1987-88 imprisonment. Zeru arrived in Boston in December 1994 and resided with a cousin in Portland, Maine. She was eight months pregnant with her second child at the time.

Zeru testified that she did not contact her family after leaving Eritrea, and that she had not been in communication with them until recently. Nor did Zeru have any contact with Ghebrai, but communicated with him in occasional messages conveyed through a relative. Ghebrai entered the United States in March of 1996, on a short-term visa to study medicine in Los Angeles, but initially had no contact with Zeru. Ghebrai did not join Zeru in Maine until completing six months of medical training.

A new IJ was assigned to petitioners' case in 2003. He reviewed the record, including petitioners' previous testimony, and held a full day of hearings on November 26, 2003. Zeru and Ghebrai reiterated their prior testimony. Zeru stated during direct evidence that she had been raped once, at the start of her imprisonment in 1987. Later, following cross examination and in response to questioning by the IJ, Zeru said there were two instances of rape, the second just before her release.

Petitioners also presented an affidavit and testimony from a fact witness named Efrem Weldemichael. Weldemichael, a native of Eritrea and a United States citizen, testified that he was an ELF-RC executive committee member in the United States. Weldemichael testified that he knew Zeru as an ELF-RC member when they were both in Ethiopia during the mid-1980s; he also testified that he heard reports from other ELF-RC members in 1987 or 1988 that Zeru was imprisoned by the Ethiopian government.

The IJ also heard from Dr. Melissa Wattenberg, a clinical psychologist specializing in Post-Traumatic Stress Disorder (PTSD), whom petitioners presented as an expert witness. Wattenberg was not a treating psychologist and did not provide therapeutic services to Zeru. Rather, at the request of Zeru's counsel, she interviewed Zeru about her experiences during two meetings in October and November of 1998, almost four years after Zeru entered the country, and produced a detailed Assessment Report. That report summarized Zeru's oral statement of her own history and concluded that "Ms. Zeru meets criterion for current moderate PTSD, and moderate depression." The report also opined that Zeru "is a sincere and reliable reporter of her own experience." Zeru told Wattenberg that she had been raped three times, which differed from her hearing testimony.

Zeru's attorney sought to use Wattenberg's testimony to establish the contents of her report and to assess Zeru's credibility. The IJ admitted the report into evidence and indicated that he need not hear testimony duplicative of the report's contents. Zeru's counsel stated that she had no other questions for Wattenberg, and rested on the contents of the report.

The IJ also reviewed petitioners' documentary evidence during the November 26, 2003, hearing. The hearing opened with the IJ pointing out that Ghebrai failed to bring his original passport, including the relevant visa page, to the hearing. Petitioners presented the IJ with a letter they had written to the hospital in Eritrea where Zeru had allegedly received treatment following her 1987-88 incarceration, but they were unable to produce the hospital records requested in the letter. Zeru also produced an ELF-RC identification card issued at Zeru's request from the organization's office in Bonn, Germany, in 1998. Zeru testified that she did not carry such a card in Eritrea, but that she obtained it because she "was asked to produce this to prove my membership."

Zeru also entered into evidence an official letter signifying her release from the prison where she was held in Ethiopia. Zeru testified that she possessed the letter since 1995. Zeru's attorney explained that the document could not be verified by the United States Embassy in Addis Ababa because petitioners had sent a copy instead of the original document to the embassy.

Finally, petitioners submitted their marriage certificate. They sent the certificate for verification to the United States Embassy in Asmara, but the embassy responded that Zeru's date of birth as listed on the certificate conflicted with the date recorded in Asmara municipal records. In addition, certain information on the certificate, including the bride's date of birth and the date of the marriage contract, had...