Tewabe v. Gonzales

• Decision Date: 26 April 2006
• Docket Number: No. 04-1327.,04-1327.
• Citation: 446 F.3d 533
• Parties: Birhan TEWABE, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

446 F.3d 533

Birhan TEWABE, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 04-1327.

United States Court of Appeals, Fourth Circuit.

Argued: November 29, 2005.

Decided: April 26, 2006.

ARGUED:

Firooz T. Namei, Mckinney & Namei Co., L.P.A., Cincinnati, Ohio, for Petitioner. Shelley Rene Goad, United States Department of Justice, Office of Immigration Litigation, Civil Division, Washington, D.C., for Respondent.

ON BRIEF:

Peter D. Keisler, Assistant Attorney General, Civil Division, Linda S. Wendtland, Assistant Director, United States Department of Justice, Office of Immigration Litigation, Civil Division, Washington, D.C., for Respondent.

Before WILKINSON, MICHAEL, and MOTZ, Circuit Judges.

Petition for review granted; vacated and remanded by published opinion. Judge MICHAEL wrote the opinion, in which Judge WILKINSON and Judge MOTZ joined.

OPINION

MICHAEL, Circuit Judge.

An immigration judge (IJ) denied the application of Birhan Tewabe, an Ethiopian citizen, for asylum and other relief, and the Board of Immigration Appeals (BIA) affirmed in a split decision. The IJ denied the application after finding that Tewabe's testimony was implausible. Because the IJ did not provide specific and cogent reasons for discrediting Tewabe's testimony, we grant her petition for review, vacate the BIA's decision, and remand for further proceedings.

I.

In July 2001 Tewabe submitted an application for asylum and withholding of removal under 8 U.S.C. §§ 1158(a)(1), 1231(b)(3), and for relief under the Convention Against Torture, see 8 C.F.R. § 208.16(c). At her March 2002 hearing she offered the following evidence, mainly through her testimony and an affidavit. Tewabe is an Ethiopian citizen. Both of her parents are ethnic Tigrayans (Tigray is an Ethiopian province bordering Eritrea). Tewabe's father was born in Asmara, which is now part of Eritrea. In 1998 Tewabe began working as a flight attendant for Ethiopian Airlines, which is run by the Ethiopian government.

In mid-1998 one of Tewabe's cousins was deported from Ethiopia to Eritrea when authorities discovered that his father was born in what is now Eritrea. At the time, there was armed conflict on the Ethiopia-Eritrea border, and the Ethiopian government regularly detained and deported Eritreans and Ethiopians of Eritrean origin without due process. Tewabe's father and her cousin's father went to the office of the Immigration Security and Refugee Affairs (ISRA) to complain about the cousin's deportation. When they arrived, the two men were asked to show their identification, and ISRA officials learned that both were born in Eritrea. They were detained and immediately deported.

When Tewabe's father failed to return home, her mother went to ISRA to inquire but was turned away. Tewabe's mother contacted relatives in the Tigray People's Liberation Front (TPLF), which is a faction of the ruling coalition, the Ethiopian Peoples' Revolutionary Democratic Front (EPRDF). She learned that her husband (Tewabe's father) had been deported. Shortly thereafter, Tewabe was suspended from her job at Ethiopian Airlines because her personnel file reflected that her father was born in Eritrea. After two months she was permitted to return to work because her mother and relatives in the TPLF convinced airline management that she was in fact Tigrayan. Tewabe's sister Hirut fled to Israel after experiencing similar problems at her place of employment, the Ethiopian Ministry of Health, where officials assumed she was ethnic Eritrean. Tewabe's brother Daniel moved to London because he had been detained on several occasions by local officials who believed he was Eritrean.

In 1999 Tewabe learned that her cousin, who had been deported to Eritrea, had died in an Eritrean military training camp. Shortly thereafter, while attending a work meeting at Ethiopian Airlines, Tewabe criticized the deportations, stressing that innocent people were being thrown out of the country. The next day, Ethiopian Airlines again suspended Tewabe based on the assumption that she was Eritrean. After three weeks she was able to return to her job, again with the help of her mother's relatives.

In March 2001 twelve members of the TPLF, including one of Tewabe's relatives, were ousted from the TPLF central committee and from their government positions. According to Tewabe, relatives of the dissidents became targets of government persecution. Tewabe and her family supported the dissidents' rights to express themselves and to have access to the media. According to Tewabe, a TPLF audit commission found the actions of the prime minister's faction undemocratic and illegal. The prime minister ignored the commission's report and began eliminating his opponents in order to secure his power. Tewabe and her family spoke out against the government when a dissident leader, Seye Abraha, was imprisoned. Several TPLF members were purged and hundreds of Tigrayans were abducted, while others, fearing for their lives, left the country.

Later, on the morning of June 22, 2001, Tewabe and several of her family members attended a "kebele" meeting. A kebele is a neighborhood association that appears to be a rough equivalent of local government in Ethiopia. At the June 22 kebele meeting, Tewabe spoke out against the undemocratic and oppressive actions of the prime minister and his supporters. Tewabe believed that she had an obligation to speak out, and a Tigrayan co-worker, Haptu, had encouraged her to speak out at this particular meeting. After Tewabe had spoken at length, an EPRDF official yelled at her and told her to sit down. Tewabe's brother stood up and defended her, and people at the meeting began shouting at each other. Although Tewabe had spoken at earlier kebele meetings, she had never spoken with such fervor, nor had she witnessed such a hostile reaction. Tewabe became very frightened and talked to her family about leaving the meeting. Tewabe decided to leave with three of her sisters, although her mother, who believed nothing would happen, decided to remain at the meeting. Another sister, Almaz, stayed with her mother, and Tewabe's brother, Beemnet, also stayed so that the two women would not be alone.

Tewabe and her three sisters went directly to the house of Tewabe's friend and fellow flight attendant, Nardos Fisseha. Fisseha was scheduled to work that night on a flight leaving for the United States. Tewabe asked Fisseha to switch flights with Tewabe so that Tewabe could leave the country and "observe the situation from afar," J.A. 438, and Fisseha agreed. (It was "very, very common" for flight attendants on Ethiopian Airlines to switch flights. J.A. 76.) Tewabe left on Fisseha's flight and arrived in the United States the next day, June 23, 2001. At the time, Tewabe had a "good job" in Ethiopia that she liked, and she was engaged to be married. J.A. 74. As a flight attendant, Tewabe had been to the United States many times before, including about four times in 2000 and about four times in the first half of 2001. She had always returned as scheduled and had never before applied for asylum.

When Tewabe arrived in the United States, she went to the hotel where the crew was staying and called home. She spoke to a maid who reported that Tewabe's mother, sister (Almaz), and brother (Beemnet), all of whom had remained at the kebele meeting, had been imprisoned. Tewabe then spoke to Almaz's husband, who confirmed the maid's account. Next, Tewabe called her friend Fisseha. Fisseha handed the phone to one of Tewabe's other sisters, who reported that the police had been to Fisseha's house looking for Tewabe and her sisters. Fisseha was hiding Tewabe's three unincarcerated sisters from the police, and the police became angry when they could not find them. The following day Tewabe called Fisseha again and learned her sisters were no longer with Fisseha. At this point Tewabe became so frightened that she decided to remain in the United States and apply for asylum. Two weeks later, Tewabe learned that her three sisters had fled to Nairobi, Kenya. Tewabe submitted her application for asylum and other relief on July 27 2001, slightly over a month after she had arrived in the United States.

Aside from her own testimony, Tewabe had limited evidence available to present at her hearing. All of Tewabe's immediate family members who had remained in Ethiopia, including her mother, were in prison. The nine of her eleven siblings who were not in prison were scattered in various countries around the world. (At least one of her siblings has obtained refugee status.) Tewabe asked her brother-in-law, Almaz's husband, and Fisseha to write letters in support of her asylum application, but neither of them did so. Fisseha refused to provide any evidence in support of the application because she had become frightened and did not want to be involved with Tewabe any longer. Tewabe was able to present two other witnesses at the hearing. Her sister from Canada, Ghidey, testified that she had heard from Almaz's husband about the arrests of her family members in Ethiopia. Ghidey also testified that Tewabe told her that she decided to remain in the United States when she learned of the arrests. In addition, Mulu Werede, Tewabe's acquaintance and former co-worker at Ethiopian Airlines, testified on her behalf. He corroborated Tewabe's testimony about her speaking out against deportations at a work meeting in 1999, and he said that when Tewabe arrived in the United States she told him that she had left Ethiopia because "she made a speech against the government in the [kebele] meeting." J.A. 102.

Tewabe submitted a number of exhibits, including news articles stating that Prime Minister Meles Zenawi's TPLF was still the principal faction in the EPDRF ruling coalition; her Ethiopian Airlines crew member certificate; an Ethiopian Airlines termination of contract dated June 29, 1999; a letter dated July 27, 2001, from the Eritrean Relief and...