Georgis v. Ashcroft

• Decision Date: 20 May 2003
• Docket Number: No. 02-2786.,02-2786.
• Citation: 328 F.3d 962
• Parties: Zebenework Haile GEORGIS, Petitioner, v. John ASHCROFT, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

328 F.3d 962

Zebenework Haile GEORGIS, Petitioner, v. John ASHCROFT, United States Attorney General, Respondent.

No. 02-2786.

United States Court of Appeals, Seventh Circuit.

Argued April 1, 2003.

Decided May 20, 2003.

Babatunde A. Irukera (argued), Thomas & Irukera, Chicaho, IL, for Petitioner.

George P. Katsivalis, Dept. of Homeland Security Office of District Counsel, Chicago, IL, Anh-Thu P. Mai (argued), Dept. of Justice Civil Div., Immigration Litigation, Washington, DC, for Respondent.

Before FLAUM, Chief Judge, and COFFEY and EVANS, Circuit Judges.

FLAUM, Chief Judge.

Petitioner Zebenework Haile Georgis seeks review of a final order of the Board of Immigration Appeals ("BIA") denying her petitions for asylum and withholding of deportation and ordering her removal from the United States to Ethiopia, where she is a citizen. An Immigration Judge ("IJ") determined that Georgis's claims of racial and political opinion discrimination in Ethiopia did not merit asylum because they were not "internally consistent" and "inherently persuasive." Georgis appealed and the BIA affirmed the IJ's decision without opinion pursuant to 8 C.F.R. § 1003.1(a)(7). We vacate the removal order and remand for further proceedings.

I. BACKGROUND

Georgis, a native and citizen of Ethiopia, entered the United States in June 1995 on a non-immigrant visitor's visa. In July 1997 the Immigration and Naturalization Service ("INS") issued Georgis a Notice to Appear, charging her under § 237(a)(1)(B) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(1)(B), with overstaying her visa. Georgis conceded removability as charged but requested asylum under INA § 208, 8 U.S.C. § 1158, and withholding of deportation under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), as relief from removal. In her application Georgis claimed that since 1996 the Ethiopian government had been arresting and persecuting members of the Amharic ethnic and political group, including Georgis's husband, Afework Mulat ("Afework"), and three of her children. Georgis further alleged that government soldiers had interrogated her family and inquired as to her whereabouts, and that Afework and one son remained in jail because they belong to the All-Amhara People's Organization ("AAPO"), a political group opposing the Ethiopian government. Georgis herself had been a member of the AAPO when she was in Ethiopia and currently belonged to an AAPO support group in Chicago, Illinois. Georgis expressed her belief that she would be arrested and jailed for her AAPO membership if she were forced to return to Ethiopia.

At the hearing on her asylum claim, Georgis testified that she first came to the United States in 1991 to get medical treatment for one of her sons. She returned to Ethiopia in 1993 and began participating in AAPO activities in Addis Ababa, raising funds as well as organizing the women's wing of the party. Soon thereafter, in September 1993, Georgis and Afework were arrested along with several other AAPO members for protesting the earlier arrest of their party leader, Professor Asrat Woldeyes. Georgis and Afework were then taken to prison, beaten up, subjected to various forms of maltreatment and torture, including the shaving of their heads, and detained for a day and a half. Georgis also claimed that her uncle, who was second in command to Professor Woldeyes, was killed as a result of the demonstration.

On cross-examination Georgis acknowledged that she had failed to mention her September 1993 arrest in her asylum application but claimed that it was because it "didn't count as imprisonment. In my mind what imprisonment I thought that it's in the central prison for longer terms and all that. That's why I didn't really mention it." She also maintained that she did not refer to the arrest in response to Item No. 4 of the application, which asked for a specific discussion of each incident of mistreatment encountered by Georgis or her family, because "it is a short term and short time, I thought it was not much relevance for the case." When questioned further, Georgis explained that the "reason I didn't mention it is because it's a past case. I didn't thought that it's going to help my case. I thought that the current situation that I have, my children's and my husband problem, that's what I emphasized it more than what happened to me."

Georgis further testified that she returned to the United States in 1995 following a call from her son's hospital. After she arrived, she received a letter from Afework stating that many of their friends had been arrested and "that he [was] not in a stable condition in Ethiopia." This letter was not submitted as evidence. Georgis also claimed to have later received a letter from her daughter Haregwine stating that Afework had been arrested and "terribly beaten on his face," but this letter was not submitted as evidence either. Georgis testified, however, that the letter said that Afework had been arrested in January 1996. The letter also allegedly stated that Haregwine and two of Georgis's other children, daughter Frehiwot and son Minase, had been arrested; that Haregwine had been raped by a prison guard while she was detained; and that the whereabouts of Minase were unknown. On cross-examination Georgis was questioned about the inconsistency between her testimony that Afework had been arrested in January 1996 and her asylum application, which stated that the arrest occurred in October 1996. In response, Georgis explained that the discrepancy was due to the differences between the Gregorian and Ethiopian calendars;¹ because of these differences, she had "made a mistake on the — in the calendars that I said in my language. So it should be October 24 ... 1996."

Another letter from Georgis's daughter Frehiwot was submitted into evidence. According to the letter, Afework had not been released after his arrest in October 1996 but was still being detained in the central prison. Georgis initially testified that this letter had been sent "around the beginning of the November of 1996," which was around the time her family had been arrested, but she later stated that the letter was sent four months after the arrest. On re-direct Georgis confirmed that the letter was dated "16-1-90," but that date, she said, is "in the Ethiopian calendar." She did not know what the corresponding date was under the Gregorian calendar.²

In a November 1997 decision, the IJ denied Georgis's application for asylum and withholding of deportation, while granting her voluntary departure. The IJ stated that he "examined [Georgis's] application in concert with her testimony and... found numerous discrepancies." The IJ then made six "observations" in support of his conclusion: (1) Georgis did not mention the events of September 1993 in her asylum application; (2) Georgis's testimony that she was arrested at the trial of Professor Woldeyes on September 20, 1993, "appear[ed] to be in conflict with the information contained in [a] State Department opinion indicating that Professor Woldeyes was convicted on June 27, 1994" (3) Georgis's application stated that her husband was arrested in October 1996, but she "specifically testified that it took place on January 24, 1996 (although later recanted)"; (4) Georgis's application indicated that her son Minase was still in jail, but at the hearing "her testimony was that his whereabouts are unknown"; (5) Georgis testified that the letter from her daughter Frehiwot "was mailed approximately four months after her arrest in November 1996," but "this appears unlikely ... since the document submitted is dated September 22, 1997"; and (6) the "record does not contain corroborative or supporting evidence relating to the respondent's alleged AAPO membership, the political activities or arrests of the respondent or her relatives, or her husband's alleged detention."

As to this last point, the IJ noted that Georgis had attempted to submit a copy of a letter from the Ethiopian Transitional Government Second Police Station that she said corroborated the facts and circumstances of her husband's arrest. But because the letter was not submitted until the day of the hearing, see Immigration Court of Chicago Local Operating Procedure 2 ("All proposed exhibits and briefs shall be received in the Immigration Court of Chicago no later than ten (10) calendar days prior to the scheduled Individual Calendar hearing unless otherwise authorized by the Immigration Judge"), was not certified, see 8 C.F.R. § 287.6,³ and an extra copy of the translation was not provided for the government, the IJ excluded it from evidence. At the hearing, however, Georgis's lawyer explained that he did not submit the letter earlier because he had just received it from Ethiopia and that time constraints prevented him from obtaining an extra copy of the translation for the government's lawyer. With no objection from the government, the IJ accepted the letter into the record for identification purposes only and labeled it "Exhibit 4."

In June 2002 a single Member of the BIA determined that there was no reasonable possibility that the IJ's decision was incorrect and issued a "streamlined" order summarily affirming the decision. See 8 C.F.R. § 1003.1(a)(7). Georgis filed a timely petition for review in this court.

II. DISCUSSION

A. BIA's Streamlined Review Procedure

Georgis contends that the BIA abdicated its responsibility to review the IJ's ruling when it employed its streamlining procedure in her case. See 8 C.F.R. § 1003.1(a)(7). This regulation provides that a single Member of the BIA may affirm, without opinion, the results of an IJ's decision if the Member determines: (1) that the result reached in the decision under review was correct; (2) that any errors in the decision under review were harmless or nonmaterial; and (3) that (A) the issue on appeal is squarely controlled by existing Board or federal court precedent to a novel fact situation; or (B) the...