Kahssai v. I.N.S.

• Decision Date: 04 February 1994
• Docket Number: No. 92-70289,92-70289
• Citation: 16 F.3d 323
• Parties: Tsion M. KAHSSAI, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 323

16 F.3d 323

Tsion M. KAHSSAI, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 92-70289.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 3, 1993.

Decided Feb. 4, 1994.

Dan P. Danilov, Seattle, Washington, for the petitioner.

Donald Couvillon, United States Department of Justice, Washington, D.C., for the respondent.

Petition to Review a Decision of the Immigration and Naturalization Service.

Before: REINHARDT, BRUNETTI, and FERNANDEZ, Circuit Judges.

PER CURIAM:

Petitioner Tsion Kahssai applied for asylum, 8 U.S.C. Sec. 1158, and withholding of deportation, 8 U.S.C. Sec. 1253(h). The immigration judge (IJ) denied Kahssai's application, and the Board of Immigration Appeals (BIA) affirmed the denial. The BIA issued its ruling in a short opinion in which administrative notice was taken of political changes in Ethiopia that had occurred subsequent to Kahssai's deportation hearing. We have jurisdiction over Kahssai's appeal of the BIA ruling, 8 U.S.C. Sec. 1105a(a)(1), and we grant her petition for review in accordance with Sarria-Sibaja v. INS, 990 F.2d 442 (9th Cir.1993).

I.

At a March 1990 deportation hearing before an immigration judge, Tsion Kahssai, her sister Dell Kahssai, and her two brothers, Abraham and Atsbaha Kahssai, testified as follows: ¹ Kahssai was born in Addis Ababa, Ethiopia in 1971 to a family of Ethiopian Jews. Her father, a merchant from Eritrea, was arrested, tortured, and killed in April 1974 during the Communist revolution. The new Communist government believed that he was an Eritrean rebel, and was suspicious of him because of his Jewish background. His family members were told that he had died of a heart attack. They believe that he was shot, however: even though they were not allowed to examine his body, which was returned to them in a closed coffin, others who saw the body told them that it was pierced with bullet holes.

Approximately one month after the father's killing, the government arrested and killed Kahssai's eldest brother, who was then somewhere between seven and ten years old. His killing was in further retaliation for the suspected rebel activity of Kahssai's father. In September 1974, Kahssai's mother was arrested; she was pregnant at the time. The government detained her for a few months, interrogating her about her husband and children, and releasing her shortly before she gave birth to another daughter. Soon after giving birth, she disappeared. ²

Left without parents, Kahssai and her two surviving brothers were taken in by her uncle, the husband of her mother's sister. The uncle converted to Christianity, which meant that Kahssai and her brothers became Christians as well, since their uncle was raising them as his children. The uncle's decision to leave the Jewish faith was motivated by discrimination. As Tsion Kahssai explained, "we had to change our religion in order to survive."

In February 1980, Kahssai's uncle brought the family to India, where he worked as an engineer for Ethiopian Airlines. Since then, Kahssai has never been back to Ethiopia. She came to the United States in August 1988 as a non-immigrant visitor to see members of her family. During her visit to the U.S., her uncle retired from his job and returned to Ethiopia. Kahssai then decided to apply for asylum because she feared that she would face persecution if she returned to Ethiopia.

Kahssai's siblings all emigrated to the U.S. before Kahssai, and all have been granted asylum here.

II.

The BIA supported its denial of Kahssai's asylum application by taking administrative notice of recent political changes in Ethiopia. It noted that the former Ethiopian President fled the country in 1991, that a multiparty transitional government had been formed, and that the new regime had a substantially better human rights record than the past regime. The change in government occurred after Kahssai's deportation hearing, and thus she had no opportunity to show cause why notice should not be taken, or to rebut the noticed facts. ³

In Castillo-Villagra v. INS, 972 F.2d 1017, 1026 (9th Cir.1992), we found that the BIA erred in taking administrative notice of a change in government in the alien's home country without warning the alien that notice would be taken. We emphasized that, as a corollary to the requirement of a full and fair hearing, "due process requires that the [asylum] applicant be allowed an opportunity to rebut" the noticed facts. Id. at 1029.

The INS asserts that Castillo-Villagra does not control our analysis here because the BIA "in no way relied 'entirely' on the regime change in Ethiopia" in denying Kahssai's claim. However, we already rejected this argument in Sarria-Sibaja, supra. Sarria-Sibaja held that remand is required when the BIA supports a ruling using grounds other than administrative notice, but does not explicitly state that the alternative grounds constitute an independent basis for dismissing the alien's claim. Sarria-Sibaja, 990 F.2d at 444. In Sarria-Sibaja, the BIA introduced its administrative notice section with the word "Moreover," indicating that its reasoning was cumulative. Id. Here, similarly, the BIA uses the words "In addition."

The petition for review is therefore granted. ⁴

REINHARDT, Circuit Judge, concurring:

Kahssai's asylum claim is based upon the arrests and killings of her father and brother, the detention of her mother, and her own forcible assumption of a new identity. The BIA was unconvinced by her claim, finding that (1) political conditions had changed in Ethiopia, (2) her testimony lacked credibility, and (3) even if her family had suffered persecution, Kahssai herself had not. In light of these findings, it ruled that Kahssai had not established her statutory eligibility for asylum.

In our per curiam opinion, we remand this case to correct the BIA's erroneous use of administrative notice. We express no opinion on the other issues involved in Kahssai's asylum claim. Nevertheless, I believe that some indication of our views might be helpful to the BIA. Accordingly, I write separately to make clear my own disagreement with the BIA's assessment of the issues of credibility and persecution in this case.

I.

The BIA adopted the IJ's credibility determination, stating that the "[a]fter a careful review of the record, we find that there is no adequate basis for overturning the immigration judge's adverse credibility finding." It should be noted, however, that while purporting to defer to the IJ, the BIA inaccurately characterizes his finding. The IJ did not simply find that Kahssai's testimony lacked credibility, as the BIA states. Instead, the IJ challenged Kahssai's credibility only as to her alleged fear of persecution. He specifically noted that her credibility in describing the events of 1974 "cannot be determined" because of her young age at that time. Finally, the IJ made no explicit credibility determination as to Kahssai's testimony regarding later events. His description of those events, however, is consistent with her testimony, so that it is reasonable to assume either that he found the testimony credible or that it in fact is so. See Damaize-Job v. INS, 787 F.2d 1332, 1338 (9th Cir.1986).

The substance of Kahssai's asylum claim hinges on the events of 1974. As Kahssai stated, in that year, "everything happened in the family": she lost her father, her brother, her mother, and as a result she was forced to take on a new identity and a new religion. By declining to make credibility findings with respect to Kahssai's testimony and that of her siblings concerning the events of that year, and thereby declining to rule on whether he believes the events did or did not occur, the IJ stripped Kahssai of a proper opportunity to establish her claim.

Generally, an IJ's credibility determinations are reviewed for substantial evidence. Turcios v. INS, 821 F.2d 1396, 1399 (9th Cir.1987). ¹ The explicit refusal to make a credibility determination should not be due the same deference; ² but even were this deferential standard to be applied, the IJ's ruling would fail. The IJ based his refusal to evaluate Kahssai's credibility in describing the events of 1974 on the fact that Kahssai was extremely young at the time, and as a result her testimony regarding those events was the result of secondhand knowledge. These facts do not justify an abdication of the IJ's responsibility to make a credibility determination, however. First, portions of Kahssai's testimony were explicitly based on personal recollection. ³ Even at age three, one is likely to remember the traumatic loss of one's family. Second, there is a difference between describing things that one learned as a child, and reciting a fabricated story. ⁴ The IJ did not say that he thought Kahssai was lying. But if she was telling the truth about being raised by her uncle and being told that her father and brother had been killed, and her mother arrested, then, even without a living eyewitness to the events who could testify before the IJ, there is no reason to doubt that the events occurred. ⁵

Finally, the IJ made no explicit credibility determination regarding the testimony of Kahssai's brothers and sister. Generally, when findings have not been made regarding a witness' credibility in a deportation hearing, the reviewing court should presume that the IJ found the witness' testimony credible. Artiga Turcios v. INS, 829 F.2d 720, 723 (9th Cir.1987). All three of the siblings testified to the events in question, confirming Kahssai's description of them. Kahssai's sister Dell was 18 in 1974, old enough so that her testimony regarding the father's death could have been sufficient to establish it as a fact (she had left Ethiopia by the time of her mother's detention and disappearance).

The IJ impliedly cast doubt upon the siblings' credibility by stating that they "differed in their recollection of the death of their father, which ranged from...