Guta-Tolossa v. Holder

• Decision Date: 16 March 2012
• Docket Number: No. 10–2132.,10–2132.
• Citation: 674 F.3d 57
• Parties: Awulachew GUTA–TOLOSSA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

674 F.3d 57

Awulachew GUTA–TOLOSSA, Petitioner,
v.
Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 10–2132.

United States Court of Appeals, First Circuit.

Heard Dec. 5, 2011.Decided March 16, 2012.

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Eleanor J. Newhoff, for petitioner.

Stefanie Notatino Hennes, Trial Attorney, United States Department of Justice, Civil Division, with whom Tony West, Assistant Attorney General, Civil Division, and Leslie McKay, Assistant Director, Office of Immigration Litigation, were on brief for respondent.

Before LYNCH, Chief Judge, STAHL and LIPEZ, Circuit Judges.

STAHL, Circuit Judge.

Petitioner Awulachew Guta–Tolossa appeals an order of the Board of Immigration Appeals (BIA) affirming the denial of his applications for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). ¹ Finding that the BIA failed to address two central issues in this case, we grant Guta–Tolossa's petition for review, vacate the order of removal, and remand.

I. Facts & Background

The following is a summary of the evidence that Guta–Tolossa presented in support of his application for asylum. We have limited our review to the administrative record on which Guta–Tolossa's order of removal was based, as required by 8 U.S.C. § 1252(b)(4)(A).

Guta–Tolossa, who was born and raised in Ethiopia, is one of five children. His mother is of the Amhara ethnic group, and his father is of the Oromo ethnic group. According to Guta–Tolossa's affidavit, the ethnicity of the father dictates the ethnicity of children in Ethiopia, and Guta–Tolossa is thus considered Oromo. Guta–Tolossa comes from what he describes as a relatively influential family in the Oromo community. His paternal grandfather was a local leader in the Oromo community. His father, for many years, acted as an organizer and recruiter for an Oromo political, social, and cultural organization known as the Mecha Tulema Association (MTA), which was outlawed by the Ethiopian government in July 2004. Guta–Tolossa's brother, Tilahun, was also active with the MTA and distributed pamphlets calling for an end to the oppression of the Oromo people in Ethiopia. Guta–Tolossa himself distributed such pamphlets on several occasions as well.

In September 2004, Tilahun was arrested and detained for thirteen days, during which time he was interrogated and beaten. Guta–Tolossa's mother was able to bribe the police to release Tilahun, who subsequently fled to Qatar. Guta–Tolossa alleges that government agents repeatedly visited his house and conducted searches between September and December 2004. In December 2004, Guta–Tolossa's father was arrested and imprisoned. He has not been seen since. After the arrests of his brother and father, Guta–Tolossa became

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concerned for his own safety and lived largely away from his family's home.

In February 2005, Guta–Tolossa obtained a new identity document and, with the help of a friend, was able to convince the clerk who issued the document to list his ethnicity as Amhara, which he felt might help protect him in the event of a run-in with government agents. Nonetheless, according to Guta–Tolossa's affidavit, because his last name is unmistakably Oromo, he did not feel safe in Ethiopia. He thus decided to flee the country. Guta–Tolossa obtained a false passport, and his mother paid someone to help him get out of the country. When he left Ethiopia in April 2005, it was Guta–Tolossa's first time traveling outside of the country. He first flew to Mexico City and, from there, was smuggled in a truck across the U.S.–Mexico border on or about April 15, 2005.

A few days later, U.S. Immigration and Customs Enforcement (ICE) officials arrested Guta–Tolossa near El Paso, Texas. Although Guta–Tolossa could not speak English, the ICE agents questioned him in English, Spanish, and, at some point, in Amharic, his native language. After the interview, he signed a Record of Sworn Statement in English. That statement indicated that Guta–Tolossa did not fear persecution or torture if he returned to Ethiopia. The U.S. Department of Homeland Security (DHS) placed Guta–Tolossa in removal proceedings in El Paso, and he was released on bond. He requested a change of venue, and DHS transferred his case to Boston. In defense of removal, Guta–Tolossa applied for asylum, withholding of removal, and CAT relief, claiming a fear of future persecution in Ethiopia as a result of his political opinion, his membership in a particular social group, and his ethnicity.

Once Guta–Tolossa arrived in Boston, he joined the Coalition for Unity and Democracy (CUD), a coalition of Ethiopian political opposition parties. Guta–Tolossa says he has been active with the group since July 2006 and has attended CUD demonstrations in Boston, Washington, D.C., and elsewhere.

At his merits hearing before the Immigration Judge (IJ) on October 19, 2007, Guta–Tolossa submitted a variety of reports from news organizations, human rights organizations, and the U.S. Department of State describing country conditions in Ethiopia. Those reports generally corroborated his claims that the Ethiopian government has arbitrarily arrested and detained MTA members. He also submitted: (1) his school completion certificate; (2) his resident identification card, which listed his ethnicity as Amhara; (3) photographs of himself participating in CUD rallies in the United States; and (4) a letter from his brother, Tilahun, confirming that Tilahun had been detained and beaten before fleeing Ethiopia.

During its cross-examination of Guta–Tolossa, the government introduced for impeachment purposes the Record of Sworn Statement that the ICE agents had prepared in Texas, which indicated that Guta–Tolossa did not fear persecution if returned to Ethiopia. At the hearing, Guta–Tolossa testified that he was not able to read or write in English at the time that he was shown and signed the Record of Sworn Statement, that no one read or explained the statement to him before he signed it, that the ICE agents interviewed him both in English and in Amharic, that he did not recall being asked whether he feared persecution if he returned to Ethiopia, but that there was also quite a bit he did not remember about that day because of his mental state at the time.

The IJ issued an oral decision that same day and denied Guta–Tolossa's applications for asylum, withholding of removal, and CAT protection. In her findings, the IJ

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described Guta–Tolossa as “an intelligent, articulate, soft-spoken young man” whose oral testimony was “vague” compared to his “quite detailed” affidavit but “not inconsistent with the affidavit.” The IJ noted a “major inconsistency, and there was only one major inconsistency” in the case, which was the discrepancy between Guta–Tolossa's testimony that he feared persecution in Ethiopia and his Record of Sworn Statement, in which he indicated that he did not. The IJ also found that there was “much questioning” at the merits hearing regarding the sworn statement, but she “simply [did] not have enough evidence to determine one way or another” what answer, if any, Guta–Tolossa had provided to the question, “Do you fear persecution or torture if you return to your country?” The IJ did not make an explicit credibility finding.

The “greatest problem” with Guta–Tolossa's asylum application, the IJ went on to say, was “the lack of proof” he had presented. “In this case,” the IJ found, “corroborating evidence should have been offered to bolster respondent's detailed claims in his affidavit.” The IJ explained that Guta–Tolossa should have provided “corroborating evidence or an explanation for its unavailability” with regard to: (1) the detentions of his father and brother and the reasons for those detentions; (2) his father's and brother's activities with the MTA; (3) his grandfather's activities within the Oromo community; (4) Guta–Tolossa's claim that he is “from the Oromo region”; and (5) his CUD membership.

The IJ concluded that she could not find, on the record before her, that Guta–Tolossa's brother and father were detained as a result of their activities with the MTA, noting (incorrectly, as it turns out) that the U.S. State Department reports did not mention the MTA.² She also determined that Guta–Tolossa's participation in the CUD did not give rise to a well-founded fear of future persecution, a finding that Guta–Tolossa does not challenge on appeal. The IJ therefore denied Guta–Tolossa's applications for asylum, withholding of removal, and CAT relief.

On November 16, 2007, Guta–Tolossa filed an appeal with the BIA. In support of his appeal, Guta–Tolossa submitted a letter dated December 2006 from the Boston-area CUD chapter, confirming that he had been active with the CUD since July 2006. The BIA dismissed his appeal, agreeing with the IJ that Guta–Tolossa had failed to provide sufficient corroborating evidence or a persuasive explanation as to why that evidence was not reasonably available. The BIA found that the letter from the CUD was reasonably available at the time of Guta–Tolossa's merits hearing, given that it was dated December 2006 and the hearing occurred in October 2007, and thus did not merit remand.

Guta–Tolossa challenged the BIA's dismissal in two ways. First, on September 23, 2010, he filed a timely petition for review with this court. Then, on September 27, 2010, he filed a timely Motion for Reconsideration and to Reopen Removal Proceedings with the BIA. In support of his motion to the BIA, Guta–Tolossa submitted various documents that the IJ had deemed lacking,³ including a birth certificate,

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another letter from the Boston CUD chapter, and affidavits from his mother, sister, and a family friend confirming his father's arrest. On March 25, 2011, the BIA denied Guta–Tolossa's motion to reopen,...