Metropolitan News-Enterprise


Monday, July 21, 2008


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Court Overturns Asylum Denial to Woman Claiming Torture

Judges Fire Back at IJ Who Accused Court of Ignoring Credibility Standard


By STEVEN M. ELLIS, Staff Writer


The Ninth U.S. Circuit Court of Appeals on Friday rejected the conclusion of an immigration judge—who openly accused the court of failing to follow U.S. Supreme Court precedent—that an Ethiopian woman seeking asylum who alleged torture by her government lacked credibility.

Ruling that the determination was not supported by substantial evidence, and pointing to statistics refuting the judge’s claims that the Ninth Circuit rarely affirmed such determinations, the court remanded Etagegn Haile Tekle’s petition for relief to the Board of Immigration Appeals to review whether she was eligible for asylum or other relief.

The court also suggested, to the extent further factual findings might necessitate a similar remand by the BIA, that a different immigration judge be assigned, noting that the judge had warned that he would recuse himself if the matter were remanded “for any reason” because of his conclusions as to Tekle’s veracity.

Tekle and her husband are both Ethiopian citizens and members of the Oromo racial group. After entering the United States in 2003 and later filing a petition for asylum, Tekle testified that security agents of the Ethiopian government had arrested and tortured her on account of her active membership in the Oromo Liberation Front, a political organization that supports independence for the Oromo people.

Before she testified, the immigration judge—whose name was not disclosed—commented for the record:

 “I don’t care if the Ninth Circuit wants to report this to my supervisor. The Ninth Circuit does not comply with Supreme Court law with regard to asylum.”

He continued:

“While I am in the Ninth Circuit and have to comply, I do note that they don’t really care what immigration judges do. If an immigration judge makes an adverse credibility determination, they will, in only one case out of every 250 to 300, affirm it. So I don’t play their game with regard to credibility determinations.”

Instead, the judge said, asylum hearings should be analyzed “on the basis of whether the claim itself is credible as opposed to testimony because that’s really the, the strength of it,” and remarked it was “very rare” that an adverse credibility determination would be upheld.

Tekle then testified that government agents had “continuously” beaten the bottoms of her feet with electrical wires while questioning her as to the whereabouts of her husband—an active OLF member—and whether they had any weapons.

She also said that, after she fled the country after being released on the condition that she not engage in any OLF activity, her father was taken into custody for aiding her flight.

However, the immigration judge—despite acknowledging reports from the governments of the United States and the United Kingdom showing arbitrary arrest and detention, torture and other mistreatment of the Oromo by the Ethiopian government—found that purported inconsistencies rendered her testimony incredible.

Alternatively, he also found that she was ineligible for asylum because her fear of future harm was the result of “general conditions of violence and civil unrest,” leaving her without fear of persecution by the government itself if she returned.

The Board of Immigration Appeals affirmed, but referred to only four of the eight reasons cited and specifically declined to review the immigration judge’s alternate conclusion.

On appeal, Judge William A. Fletcher first cited statistics showing that approximately 80 percent of all adverse credibility findings by immigration judges were affirmed in asylum cases between January 2005 and March 2008. Cases in which the Ninth Circuit reverses an adverse credibility finding “are the exception, rather than the rule,” he wrote.

Fletcher then dismissed the immigration judge’s conclusions that Tekle’s testimony was inconsistent as to the duration and scope of her interrogation, the impact on her father, and her rationale for seeking asylum in the United States.

Writing that any purported inconsistency as to the duration of the beating was attributable to the immigration judge’s misunderstanding or incorrect recall of the context of Tekle’s use of the word “continuously” to describe it, Fletcher noted that Tekle’s testimony consistently referred to a beating on one occasion, and pointed out that “Tekle never testified or even suggested that she had been beaten throughout her two-week detention.”

He then swept aside the immigration judge’s reasoning that Tekle’s testimony that the interrogation focused on her husband and weapons differed from a previous statement in which she said it focused on the OLF’s organization and the identities of other members, and criticized the judge for not giving Tekle an opportunity to explain herself.

Fletcher criticized a similar failure with respect to a purported inconsistency between Tekle’s testimony that her father had been taken into custody, and the testimony of her brother—a lawful permanent resident of the United States—that their father had only been questioned. Noting that both qualified their testimony as hearsay, Fletcher wrote that it the difference was understandable in the context of lay witnesses speaking of police practices.

He further rejected the immigration judge’s conclusion that Tekle’s testimony that she decided to flee Ethiopia when she was released was contradicted by preparations to leave she had been making when she was arrested.

Noting that Tekle testified she decided to leave “for good” after her release, Fletcher wrote out that “[s]he never stated or even suggested that she had never considered leaving Ethiopia prior to her arrest.”

Senior Judge John T. Noonan and Judge Carlos T. Bea joined Fletcher in his opinion.

The case is Tekle v. Mukasey, No. 05-76841.


Copyright 2008, Metropolitan News Company