Mukamusoni v. Ashcroft

United States Court of Appeals
For the First Circuit

No. 03-1723

ALLEN MUKAMUSONI,

Petitioner,

v.

JOHN ASHCROFT, Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS

Before
Lynch, Circuit Judge,
Campbell and Stahl, Senior Circuit Judges.

Daniel F. Cashman, with whom Cashman & Lovely, P.C. and
Susanna L. Shafer were on brief, for petitioner.
Jamie M. Dowd, Attorney, Office of Immigration Litigation,
with whom Peter D. Keisler, Assistant Attorney General, and David
V. Bernal, Assistant Director, Office of Immigration Litigation,
were on brief, for respondent.

December 1, 2004
 LYNCH, Circuit Judge. Allen Mukamusoni, a woman native

to Uganda and a citizen of both Uganda and Rwanda, entered the

United States at Houston, Texas, on May 5, 1998 as a non-immigrant

visitor for pleasure, with authorization to remain until November

4, 1998. Mukamusoni remained in the United States beyond November

4, 1998, and the Immigration and Naturalization Service (INS)1

charged her with removability. Before Mukamusoni was charged with

removability, she submitted an application for asylum, withholding

of removal, protection under the Convention Against Torture (CAT),

and voluntary departure. The Immigration Judge (IJ) granted

voluntary departure but denied her all other forms of relief on

January 24, 2001, and the Board of Immigration Appeals (BIA)

dismissed her appeal on April 22, 2003. Mukamusoni then petitioned

this court for review. We vacate the BIA's order and remand.

I.

We recount the facts as they are presented in

Mukamusoni's oral testimony before the IJ and in documentation

submitted in support of her application for asylum.

Mukamusoni was born to Rwandan refugee parents on May 17,

1977, in a Rwandan refugee camp in Uganda. Her mother was a Tutsi

while her father was a Hutu, and she had six siblings. She had

1
In March 2003, the relevant functions of the INS were
transferred into the new Department of Homeland Security and
reorganized into the Bureau of Immigration and Customs Enforcement
(BICE). For simplicity, we refer to the agency throughout this
opinion as the INS.

-2-
"always considered [her]self Rwandese." Her father worked for a

Ugandan family in Mbarara, Uganda, and that family told government

officials that Mukamusoni was their daughter so that she could

attend school in Uganda. Mukamusoni was thus able to attend St.

Mary's, a Catholic boarding school, and lived with the nuns of St.

Mary's at their convent in Uganda.

Mukamusoni's family lived in Uganda until 1993, when

every member of the family except Mukamusoni returned to Rwanda.

Mukamusoni explained that at that time, many Rwandans in Uganda

decided to return to Rwanda in order to "fight for their rights."

The Rwandan migration was also partly due to Uganda's policy, which

advocated the repatriation of Rwandan refugees to Rwanda.

Mukamusoni herself stayed behind in Uganda to continue high school

at St. Mary's.

In 1994, civil war broke out in Rwanda. According to the

1999 Human Rights Watch Report for Rwanda (which was admitted into

evidence), in 1994 "the Rwandan Patriotic Front (RPF), composed

largely of Tutsi refugees who had spent decades in exile, defeated

the Rwandan government, made up primarily of Hutu, who form the

great majority of the Rwandan population. . . . [T]he [Hutu-

dominated] government and army carried out a genocide of more than

half a million Tutsi until they were stopped by the RPF." After

their defeat, members of the former government became leaders of

the Hutu rebels, and "[s]ome of the insurgents, including several

-3-
senior officers who led the 1994 genocide, seemed ready to continue

annihilating the Tutsi."

During the genocide of the Tutsi in Rwanda, Mukamusoni's

father was originally in the army of the Rwandan Patriotic Front

(RPF), but after some time he decided to desert the RPF and joined

the Hutu rebels because he was Hutu himself. Mukamusoni's eldest

brother joined her father with the Hutu rebel forces during the

war, and he was killed in Kigali, Rwanda in 1994. Mukamusoni's

other siblings and her mother lived in a refugee camp at Mutara,

Rwanda during this time. Mukamusoni said that even though a Hutu

law required "a Hutu man married to a Tutsi woman to kill his

wife," Mukamusoni's father refused to kill his wife because he was

in love with her. But later, a Hutu death squad came to the

refugee camp and slaughtered Mukamusoni's mother and her remaining

siblings, along with many other refugees.

Through most of the genocide, Mukamusoni was in Uganda.

She returned to Rwanda in 1995, when the civil war in Rwanda slowed

down, to take the university entrance exams and to be with her

family. While in Rwanda preparing for the exams, she received news

of the massacre of her mother and siblings. Mukamusoni decided to

attend the funeral for her mother, siblings, and other victims of

the massacre, even though it was very dangerous for her because of

her Hutu heritage and the fact that most of the people there were

Tutsi. Mukamusoni testified that at the funeral there were "[s]o

-4-
many people" dead and the bodies were "cut in pieces" and "mixed

up" and buried in the same grave yard, such that one "couldn't tell

who is who." In fact, Mukamusoni was unable to identify the

remains of her youngest sibling.

At the funeral, she also saw her father, who could not

stay long because the Tutsi in the RPF were looking for him. (By

then the RPF was in control of the government of Rwanda.) He told

her that he was leaving Rwanda for Zaire (now Congo) with the other

Hutu rebels. According to the 1999 Human Rights Watch Report for

Rwanda, after the RPF victory, the Hutu rebels led "some two

million Rwandans into exile, more than half of them to Zaire."

Mukamusoni began her studies at the National University

of Rwanda in Butare, Rwanda in May 1996. She introduced into

evidence a copy of her Rwandan identity card and a copy of her

student identity card at the National University of Rwanda. The

RPF government posted soldiers, most of whom were Tutsi, at the

entrances of the University in order to prevent a repeat of the

Hutu rebels' massacre of the students, which had occurred in 1994

during the genocide. The soldiers and other students began to

harass Mukamusoni because she was using her father's last name,

Mukarazizi, which they recognized as the name of a known Hutu

rebel. Mukamusoni studied journalism and was an outspoken

proponent of ethnic reconciliation between the Hutu and the Tutsi.

In response, the Tutsi soldiers and their student affiliates banned

-5-
her from publishing letters in the school newspaper and told other

students not to listen to her. She received letters from her

father from time to time informing her that he was alive, but these

letters were interpreted by the RPF soldiers as evidence of her

espionage with a Hutu rebel. As a result, she was "pulled from

class" and questioned by the soldiers.

At the end of her first semester, Mukamusoni was again

taken from class to the RPF office, where her student ID and

Rwandan passport were taken from her so that she could not travel

and leave Rwanda. The soldiers interrogated her about her

correspondence with her father and his whereabouts; although she

showed them her father's letters and explained that she knew

nothing about the plans of the rebels, the soldiers did not believe

her and thought she was lying. She was arrested and taken to

prison in Butare, Rwanda, where she was imprisoned for four months.

During this time she was beaten every morning, interrogated twice

per week, and tortured by various kinds of forced activity: rolling

in dry grass in the mornings as a form of "wake up"; walking "miles

and miles" to exhaustion; digging ditches; digging through giant

anthills in hot weather to retrieve the queen ant while being

beaten until she passed out; and doing other kinds of manual labor.

Within the first week of her imprisonment she was raped by a Tutsi

soldier at the prison. This was her first experience of sexual

intercourse, and she was terrified that she would contract AIDS or

-6-
become pregnant from the rape. During her imprisonment, she

"wished for death" and "had no hope for the future." But, to her

surprise, she was released when the RPF government realized that

she had no information about her father. Her passport was returned

to her, and she finished her first year at the University in 1997.

In 1997, after her release from prison, she received a

letter from someone claiming to be a friend of her father's

informing her that her father had been killed by the Tutsi in

Kibeho, Zaire. Because the letter was from a Hutu rebel, it was

not signed. From that point on, Mukamusoni received no further

communications from her father.

According to the 1999 Human Rights Watch Report for

Rwanda, "[i]n refugee camps [in Zaire], remnants of the defeated

[rebel Hutu] army rearmed, recruited new forces, and began

incursions into Rwanda. In 1996, [Tutsi] Rwandan troops . . .

dispers[ed] the camps, massacring tens of thousands of unarmed

civilians, and killing thousands of soldiers and militia."

In her removal proceedings, the INS lawyer and the IJ

both questioned Mukamusoni about whether she could present death

certificates for her family. She testified that she "never even

heard about . . . death certificates. . . . They don't give out

death certificates in [Rwanda]," especially not "during the

genocide." Nor did she know if they gave out death certificates in

Zaire, where her father had died, as she had never been there.

-7-
 Mukamusoni spent the summer of 1997 back in Uganda at St.

Mary's convent. She told Sister Catherine, a nun to whom she was

very close, her fears of returning to Rwanda in light of her

experiences there. However, Sister Catherine urged her to return

to Rwanda to continue her studies. Because she had lost her entire

family and had no means of economic support, Mukamusoni decided

that she had to return to school in Rwanda.

When Mukamusoni started her second year at the University

in 1997 she changed her last name on the student ID from her

father's name (Mukarazizi) to her own (Mukamusoni), in the hope

that the RPF soldiers would stop harassing her. Mukamusoni

explained that in Africa it was not necessary that children have

the same last name as their parents. But, this name change did not

work because a fellow student, Ndemezo, found out through

Mukamusoni's classmates that she was Hutu and that her father was

a Hutu rebel. Ndemezo, a Tutsi, targeted Mukamusoni for harassment

because he felt that she helped to kill his family and reported her

to his brother, who was a soldier in the RPF. Ndemezo stole

Mukamusoni's Ugandan passport. Later in the year, Mukamusoni was

again arrested by the RPF and, this time, she spent two months in

prison. She was beaten, forced to do manual labor, and raped by a

different Tutsi soldier. The RPF again interrogated her concerning

her father and her travels to Uganda, believing that she was

receiving information from Hutu rebels. She gave the soldiers all

-8-
the information they sought, including the address of St. Mary's

convent in Uganda. Although she showed the soldiers the letter

containing news of her father's death, the RPF continued to believe

that her father was alive. The soldiers finally released her after

she threatened to kill herself. After she was released, she was

punished each day with manual labor tasks that took all day such as

farming and cleaning university facilities, such that it was nearly

impossible for her to attend class.

After a few weeks of trying to do manual labor and to

attend class, Mukamusoni escaped to St. Mary's convent in Uganda.

There she was confronted on several occasions by Ugandan and RPF

soldiers. Mukamusoni explained that Ugandan soldiers worked with

the RPF because Uganda had supported the Tutsi during the civil

war. One of Mukamusoni's friends, Fi Fi, informed Sister Catherine

that RPF soldiers were planning to arrest Mukamusoni in Uganda.

Sister Catherine then took Mukamusoni to a remote village where she

could hide while Sister Catherine obtained on Mukamusoni's behalf

a Ugandan passport, a tourist visa to the United States, and a

plane ticket.

Sister Catherine believed that Mukamusoni should go back

to Rwanda to get her college transcripts so that she could continue

her studies in the United States. Although Mukamusoni pled with

Sister Catherine and explained to Sister Catherine that such a trip

would be very dangerous, Sister Catherine insisted that it was very

-9-
important. At Sister Catherine's urging, Mukamusoni returned to

Rwanda on February 17, 1998, to obtain her transcripts. She heard

from Fi Fi that the RPF was planning to arrest her, and she

immediately fled back to Uganda ten days later, without her

transcripts. Upon her return, she stayed for a short time at the

convent before going back to the remote village to hide. While she

was at the convent soldiers hid outside the convent, waiting to

interrogate her. Mukamusoni also returned to Rwanda one more time

in another aborted attempt to get her transcripts, staying for only

a few days this time because she again heard that the RPF planned

to arrest her. Mukamusoni introduced into evidence a copy of her

Ugandan passport.

Mukamusoni returned to the convent at the end of April

1998 to get her plane ticket, and Sister Catherine died of cancer

shortly after that. Mukamusoni left Uganda and entered the United

States at Houston, Texas, on May 5, 1998 with a six-month visitor's

visa. Her luggage was lost by the airline. Many of her personal

documents, such as her Rwandan passport and the letter informing

her of her father's death, were lost along with the luggage.

Mukamusoni introduced into evidence an apology letter from

Northwest Airlines and the lost luggage tracing claim forms.

Mukamusoni moved to Waltham, Massachusetts, where she

lived with a distant relative and worked as a babysitter. On May

-10-
10, 1999, she applied for asylum in the United States, a few days

more than one year after she entered the United States.2

In August of 1999, Dr. Rachel Wolfe, a psychologist of

the Cambridge Health Alliance, began to evaluate Mukamusoni, upon

referral by Mukamusoni's counsel. Dr. Wolfe conducted three

clinical interviews with Mukamusoni and recorded her findings in a

psychological evaluation completed on October 1, 1999. This

evaluation and a set of notes maintained by Dr. Wolfe during the

time she saw Mukamusoni were submitted into evidence. Dr. Wolfe

found Mukamusoni to be a "reliable historian" whose "account of her

experience was consistent across interviews." Dr. Wolfe wrote that

Mukamusoni suffered from ulcers "developed in prison," and that she

sought HIV testing to be sure that she did not have AIDS. Dr.

Wolfe reported that every night, Mukamusoni experienced nightmares

of her tortures in prison and the killings of her family, waking to

the "sound of her own screams or to a pillow wet with her tears."

She wrote that Mukamusoni "fe[lt] flooded with terror,"

"experienc[ed] overwhelming grief . . . and feelings of

helplessness and hopelessness," "felt cut off from people," and had

little control over her crying spells. Dr. Wolfe described

Mukamusoni as having a restricted range of emotion, which she said

is typical of trauma victims, and that Mukamusoni had a "sense of

2
An application for asylum must be filed within one year unless
excused by changed or extraordinary circumstances. 8 U.S.C. §§
1158(a)(2)(B), (D).

-11-
foreshortened future" where she did not "expect to live long." Dr.

Wolfe also wrote that Mukamusoni had difficulty falling and

remaining asleep at night, "unable to get thoughts of her family

and fears of what will happen to her out of her mind."

Based on Mukamusoni's symptoms, Dr. Wolfe diagnosed her

with Post Traumatic Stress Disorder (PTSD). Beyond the diagnosis

of PTSD, Dr. Wolfe reported that Mukamusoni's behavior during her

interviews (including low voice and low level of energy) was

typical of individuals experiencing a "Major Depressive Disorder"

under the definition of the American Psychiatric Association's

Diagnostic and Statistical Manual of Mental Disorders. Dr. Wolfe

recommended that Mukamusoni receive "individual psychotherapy and

psychopharmacology," and "antidepressant medication for her post-

traumatic and depressive symptoms." Mukamusoni began to receive

psychotherapy from Dr. Wolfe, and she was also given Prozac. Dr.

Wolfe noted that Mukamusoni "appear[ed] to have the drive and

intelligence to create a productive life for herself in the United

States." Dr. Wolfe noted that Mukamusoni was "enthusiastic and

compliant" in treatment, but was not reliable in making her

appointments. After a few more sessions, Mukamusoni did not

continue to see Dr. Wolfe for treatment.

The INS rejected Mukamusoni's application on October 15,

1999, because she missed the one-year filing deadline. See 8

U.S.C. § 1158(a)(2)(B); 8 C.F.R. § 1208.4(a). On October 27, 1999,

-12-
the INS issued a Notice to Appear, charging her with removability

as an alien who remained in the United States longer than

permitted.

II.

Removal proceedings for Mukamusoni commenced before an IJ

on January 12, 2000; Mukamusoni conceded removability and relied on

her application for asylum, withholding of removal, protection

under the CAT, and voluntary departure. A merits hearing was held

on April 27, 2000, and continued on January 24, 2001.

During the April 27, 2000 hearing, the IJ excused

Mukamusoni's late filing of her asylum application because the IJ

found her to be suffering from PTSD during the year that she was in

the United States, and that this constituted "extraordinary

circumstances" justifying the late filing. No dispute remains as

to the timeliness of her filing.

Mukamusoni testified to the events in her application and

affidavit as recounted above. She testified that she was afraid to

go back either to Uganda or Rwanda for fear that she would be

tortured due to her Hutu ethnicity and the political activities of

her father. She testified that she had heard from her friend Fi Fi

that soldiers still went by St. Mary's to ask the nuns about

Mukamusoni's whereabouts.

Mukamusoni offered to have Dr. Wolfe testify at the

original hearing on April 27, 2000, but was told by the IJ to wait

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for a later date as the IJ wanted to hear Mukamusoni's testimony

first. Mukamusoni again offered to have Dr. Wolfe testify by

telephone at the January 24, 2001 hearing, but the IJ denied that

request as well on the ground that the witness was available. Dr.

Wolfe, however, was not available to appear for the later date and

so did not testify.

At the April 27, 2000 hearing, the IJ granted a

continuance to January 24, 2001 in part to allow Mukamusoni to

obtain additional documentation, including a death certificate for

her father, medical records, and a letter from her friend Fi Fi.

At the later date, Mukamusoni submitted her medical records into

evidence. The government objected on the ground that Dr. Wolfe,

the maker of the records, was not available to be cross-examined.

The IJ nonetheless made the records part of the record, agreeing to

consider them de bene in light of the objection. The IJ also

denied Mukamusoni's attempt to introduce an affidavit documenting

the (ultimately unsuccessful) attempts to secure a death

certificate for her father.

The IJ finally denied Mukamusoni's application for asylum

"as a matter of discretion" in an oral decision dated January 24,

2001. The IJ also denied the applications for withholding of

removal and CAT protection but granted her voluntary departure.

The IJ found that Mukamusoni "has not established the

truthfulness of what is stated in her asylum application,

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documentation in support thereof, and her testimony in these

proceedings." That was because, in the IJ's view, "[a] reasonable

person, similarly situated as [Mukamusoni] on this record would not

fear persecution or have a well-founded fear of persecution on

account of [one of the five statutory grounds listed in 8 U.S.C. §

1101(a)(42)(A)]." The IJ found that Mukamusoni's testimony was

"self-serving" and "[left] a lot to the imagination" and determined

that she gave "no evidence" and "no corroboration" concerning her

experiences.

On appeal to the BIA, Mukamusoni argued that the IJ had

failed to give her the benefit of the regulatory presumption of a

well-founded fear of future persecution for establishing past

persecution. See 8 C.F.R. § 1208.13(b)(1). She also argued that

the IJ misapplied the "reasonable person" test set out in Matter of

Mogharrabi, 19 I. & N. Dec. 439, 445 (BIA 1987). Finally, she

argued that the IJ abused his discretion by failing to consider her

case fully, and in particular, the IJ offered no substantive basis

for his adverse credibility findings.

On April 22, 2003, the BIA denied her appeal. In its

decision, the BIA found it unnecessary to address the adverse

credibility findings of the IJ and implicitly accepted that

Mukamusoni was credible.3 It nonetheless found Mukamusoni "failed

3
The government explicitly adopted the position that the BIA
treated Mukamusoni's testimony as credible during oral argument.

-15-
to meet her burden of proof in establishing past persecution or a

well-founded fear of future persecution." Even though the BIA

proceeded on the assumption that Mukamusoni was credible, it found

her testimony to be "vague regarding key elements of her asylum

claim" and "scant and generalized." For example, the BIA found it

significant that Mukamusoni "testified that she was raped during

her incarcerations, but provided no details about the incidents."

It discussed Dr. Wolfe's psychological evaluation only in the sense

of holding it against Mukamusoni because she did not continue to

appear for treatment. The BIA also found that Mukamusoni did not

provide sufficient corroborating evidence to support her claim, and

that such corroboration was necessary because her testimony was not

"sufficiently detailed." Finally, the BIA determined that

Mukamusoni's decision to return to school in Rwanda after her first

arrest and to return to Rwanda on two occasions to retrieve her

college transcripts undercut the genuineness of her subjective

fear.

On May 20, 2003, Mukamusoni timely petitioned this court

for review of the BIA's decision to affirm the IJ's decision.

III.

It is the BIA's decision, as the final agency order, that

we review. See Georcely v. Ashcroft, 375 F.3d 45, 49 (1st Cir.

2004); Albathani v. INS, 318 F.3d 365, 373 (1st Cir. 2003). We

review the BIA's determination that Mukamusoni failed to meet her

-16-
burden of proof under the deferential substantial evidence

standard. INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992);

Albathani, 318 F.3d at 372. Our review is on the whole record, not

solely on the evidence that supports the BIA's determination.

Gailius v. INS, 147 F.3d 34, 44 (1st Cir. 1998). "[D]eference is

not due [to the BIA] where findings and conclusions are based on

inferences or presumptions that are not reasonably grounded in the

record, viewed as a whole, or are merely personal views of the

immigration judge." Cordero-Trejo v. INS, 40 F.3d 482, 487 (1st

Cir. 1994) (citations omitted). "[W]e may not affirm the BIA's

decision 'when we cannot conscientiously find that the evidence

supporting that decision is substantial, when viewed in the light

that the record in its entirety furnishes, including the body of

evidence opposed to the Board's view.'" Gailius, 147 F.3d at 44

(quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951))

(alteration omitted). The BIA's legal conclusions are reviewed de

novo, "with appropriate deference to the agency's interpretation of

the underlying statute in accordance with administrative law

principles." Id. at 43.

An asylum applicant bears the burden of proving that he

or she is "unable or unwilling to return to [the applicant's

country of nationality] . . . because of persecution or a well-

founded fear of persecution on account of race, religion,

nationality, membership in a particular social group, or political

-17-
opinion." 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 1208.13(a).

Applicants may meet this burden in one of two ways: 1) by

demonstrating a well-founded fear of persecution on account of one

of the statutory grounds, or 2) by establishing past persecution on

account of one of the statutory grounds so as to be entitled to a

presumption of a well-founded fear of persecution. Mihaylov v.

Ashcroft, 379 F.3d 15, 21 (1st Cir. 2004); 8 C.F.R. § 1208.13(b).

Once an applicant has been found to be entitled to the

benefit of such a regulatory presumption based on past persecution,

the presumption may be rebutted by a finding that either "[t]here

has been a fundamental change in circumstances such that the

applicant no longer has a well-founded fear of persecution in the

applicant's country of nationality," or "[t]he applicant could

avoid future persecution by relocating to another part of the

applicant's country." El Moraghy v. Ashcroft, 331 F.3d 195, 203

(1st Cir. 2003) (quoting 8 C.F.R. §§ 1208.13(b)(1)(i)(A)-(B))

(alterations in original). The government bears the burden of

rebutting the presumption by a preponderance of the evidence. 8

C.F.R. § 1208.13(b)(1)(ii).

An applicant must pass both an objective and subjective

test to show a well-founded fear of future persecution. El

Moraghy, 331 F.3d at 203; Velasquez v. Ashcroft, 342 F.3d 55, 58-59

(1st Cir. 2003). The subjective test requires the applicant to

prove his fear is genuine, while the objective test requires

-18-
showing by credible and specific evidence that this fear is

reasonable. El Moraghy, 331 F.3d at 203.

We conclude on this record, taking Mukamusoni as credible

as the BIA did, that substantial evidence does not support the

BIA's conclusion that Mukamusoni failed to establish past

persecution on account of her mixed Hutu/Tutsi heritage and/or the

political activities of her father. The BIA committed errors of

law and misapplied the law by focusing narrowly on only parts of

the record that supported its decision, by raising too high the bar

for an asylum claimant seeking to prove past persecution or a well-

founded fear of future persecution, by unreasonably evaluating the

record, and by excessively demanding corroborative evidence. We

explain these errors below.

If the BIA had squarely found her credible, then on this

record, it is very likely that we would have been compelled to

conclude that Mukamusoni had established past persecution with

respect to her testimony of the events in Rwanda.4 See, e.g.,

Knezevic v. Ashcroft, 367 F.3d 1206, 1212 (9th Cir. 2004)

4
Although the BIA's decision begins by noting that Mukamusoni is
a "native and citizen of Uganda" who, on appeal, claims that she
"established past persecution . . . in Uganda," the decision then
goes on to discuss exclusively her testimony of events in Rwanda
and persecution by the Rwandan government. The BIA treated
Mukamusoni's nationality as Rwandan for asylum purposes, and we
will frame our review accordingly. "'[A] reviewing court must
judge the propriety of administrative action solely by the grounds
invoked by the agency . . . .'" Gailius, 147 F.3d at 44 (quoting
SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)) (alterations
omitted).

-19-
(reversing BIA's finding that there was no past persecution and

holding that record compels conclusion that asylum applicants

suffered past persecution); Bellido v. Ashcroft, 367 F.3d 840, 846

(8th Cir. 2004) (same). In that event, she would have been

entitled to a regulatory presumption of having met her burden of

proof with respect to fear of future persecution, and we would

remand for further proceedings on the basis that she had met that

burden. However, since the BIA declined to reach the adverse

credibility findings of the IJ but assumed credibility, we vacate

the BIA's order and remand for further proceedings in light of this

opinion.

The record and Mukamusoni's burden of proof

Because the BIA "d[id] not find it necessary to address

[Mukamusoni's] credibility" and solely evaluated the sufficiency of

the evidence to meet Mukamusoni's burden of proof, the BIA treated

her testimony and her supporting documentation as credible. That

is also the position the government has taken in this court.

The BIA nonetheless affirmed the IJ's denial of asylum

because it found that Mukamusoni "ha[d] not presented sufficient

detail so as to provide a plausible and coherent account of the

events underlying her claim" and "failed to meet her burden of

proof in establishing past persecution." To support this

conclusion, the BIA explained that "[w]hile [Mukamusoni]'s

affidavit was replete with information, her testimony was scant and

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generalized." Then, while citing and purporting to follow the

analysis in Matter of Y-B-, 21 I. & N. Dec. 1136 (BIA 1998), the

BIA focused exclusively on Mukamusoni's oral testimony. The BIA

painted Mukamusoni's oral testimony regarding the circumstances of

her two arrests, incarceration, and release as "general," "devoid

of information," and "vague[]." In particular, the BIA pointed to

the fact that Mukamusoni provided "no details" about her rapes.

The BIA concluded that Mukamusoni, like the applicant in Matter of

Y-B-, "did not offer critical details in her testimony to furnish

context to her claim for asylum." See Matter of Y-B-, 21 I. & N.

Dec. at 1137-38. The record does not support any of these

conclusions.

The BIA's focus on only the oral evidence was error in

two ways. First, as a matter of fact, Mukamusoni had been

encouraged to keep her oral testimony short because her extensive

affidavit was accepted as the bulk of her testimony; and so the

affidavit could not be discounted. Further, as a matter of law,

under INS rules, that affidavit testimony could not be discounted

to the extent the BIA chose to do. See 8 C.F.R. § 1208.3(c)(1)

("[I]nformation provided in the [asylum] application may be used .

. . to satisfy any burden of proof in . . . removal proceedings.").

In doing so the BIA committed an error of law.

The BIA also erred in applying its own precedents.

Nothing in Matter of Y-B- supports the BIA's reasoning. In Matter

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of Y-B-, the BIA affirmed the IJ's decision to deny a Mauritanian

man's claim for asylum on the ground that the alien failed to meet

his burden of proof to establish eligibility for asylum. 21 I. &

N. Dec. at 1136-39. The BIA relied on the fact that the alien's

application for asylum "[did] not provide additional information

regarding his claim. Rather, there [were] significant omissions

[of references to events he orally testified to] in the written

application." Id. at 1138 (emphasis added).

In contrast to Matter of Y-B-, the written affidavit of

Mukamusoni in support of her asylum application is "replete with

information." Every single item that the BIA found lacking

sufficient detail in Mukamusoni's oral testimony is supplemented by

additional detail in her written answers to the asylum application

and the affidavit in support of her application. For example, the

BIA faulted Mukamusoni for giving only "general" oral testimony

about the "date or location" of her arrests, the manner of her

arrests, and details concerning her incarceration, interrogation,

and release. Yet, all of these details are found in her affidavit

and written answers on the asylum application, which are part of

the record before the BIA.5 The BIA identified no instance where

5
In some instances, the BIA's finding that Mukamusoni provided
insufficient detail is simply not supported even on the basis of
the oral testimony alone. For example, the BIA stated that
Mukamusoni "testified that she was raped during her incarcerations,
but provided no details about the incidents." (emphasis added). To
the contrary, the transcript of the oral proceedings before the IJ
reveals the following testimony from Mukamusoni:

-22-
she testified to significant events that are omitted in the written

application and affidavit. Thus, the analysis in Matter of Y-B-

does not support the BIA's conclusion.

The BIA's failure to take into account the evidence in

Mukamusoni's application and affidavit is contrary to law and

particularly egregious in light of the IJ's limitation of oral

testimony. We also note that the government did not object to the

admission of the affidavit information into evidence and had ample

opportunity throughout the proceedings to cross examine her on the

details in the affidavit.

Lack of corroboration

The BIA also found that Mukamusoni "did not provide

sufficient corroborating evidence to support her claim." This

finding is likewise not supported by substantial evidence.

Initially, the BIA's finding of lack of corroborative

evidence is linked to its error in not reviewing the entire record,

as noted above. This is so because "corroborative evidence is not

They took me to prison. . . . And then after
that there was a, there was a soldier who was
like I can take her to help me, to help me in
my house. And another woman was no, she can't
help you, she can stay here. Then when they
refused for him to take me, he raped me.

Mukamusoni also testified that a different soldier raped her during
her second incarceration. At oral argument, the government was
unable to explain what additional "details" concerning the rapes
might be relevant.

-23-
required to establish an asylum claim; in many cases, the

applicant's own credible testimony is sufficient to support

eligibility for asylum as long as it provides a basis for a well

founded fear." Gailius, 147 F.3d at 45; see also 8 C.F.R. §

1208.13(a). The BIA has also held that "the weaker an alien's

testimony [is], the greater the need for corroborative evidence."

Matter of Y-B-, 21 I. & N. Dec. at 1139. Because the BIA failed to

consider the entire record and found Mukamusoni's testimony weaker

than it actually was, it demanded a higher level of corroboration

than it should have. The "combination of detailed testimony and

corroborative background evidence" is sufficient to establish

Mukamusoni's past persecution. Id.

In any event, the record does not support the BIA's

conclusion that Mukamusoni insufficiently corroborated her

testimony. The BIA ignored the presence of the bulk of the

corroborative evidence in the record and overstated the role of the

absence of certain pieces of corroborative evidence. In support of

her application for asylum, Mukamusoni offered corroborative

evidence in the form of medical records, country condition reports,

proof of the loss of certain documents from Northwest Airlines, and

identification documents. In addition, Mukamusoni offered to

provide an affidavit explaining why she could not obtain a copy of

her father's death certificate.

-24-
 First, the overwhelming weight of the evidence from the

twenty-five pages of Dr. Wolfe's notes and Dr. Wolfe's

psychological evaluation corroborates Mukamusoni's claims. The

records are literally replete with information which supports the

substance of Mukamusoni's testimony. Mukamusoni's account of her

experiences in Rwanda to Dr. Wolfe is also consistent with the

accounts given in her affidavit, application, and oral testimony.

Dr. Wolfe noted the physical evidence that corroborated

Mukamusoni's story: ulcers developed in prison, her independently

sought HIV testing in light of her fear of having contracted AIDS

from her rapes, trauma-induced PTSD symptoms such as nightmares,

hopelessness, sleeplessness, distrust of others, etc.6

The BIA, however, found that the medical records

Mukamusoni submitted to bolster her claim actually "undercut[] her

claim" that she suffers from PTSD because the records show that

Mukamusoni "was not sincere in her attempts to seek medical

assistance." The BIA based this conclusion on the following

handwritten note from Dr. Wolfe: "[Although enthusiastic and

compliant,] [Mukamusoni] was not reliable in coming to therapy and,

after 2 sessions beyond the asylum eval. indicated that she did not

6
At the end of her evaluation, Dr. Wolfe wrote that Mukamusoni
"plan[ned] to resume her journalism studies and ha[d] begun taking
some courses at Middlesex Community College," which corroborates
Mukamusoni's account of her journalism studies at the National
University of Rwanda and Sister Catherine's hope that she resume
her studies in the United States.

-25-
have time to come. She recontacted me in early March 2000 because

her final trial was coming up soon."7 Even if the BIA were correct

that this indicated Mukamusoni's lack of dedication in seeking

medical treatment, it is not clear how this would "undercut her

claim" with respect to her PTSD condition. The medical records

were submitted to corroborate the diagnosis of her treating

psychologist and the strength of her fear, which are facts

independent of her ability to keep appointments. To the extent

that her "sincerity" in seeking treatment might be relevant to a

general credibility determination, the BIA already chose not to

address her credibility.

The BIA's interpretation of the medical records is

especially inexplicable because, within the very same note from

which the BIA takes the quote above, Dr. Wolfe reiterates her

diagnosis and recommends continued follow-up treatment for

Mukamusoni with a new therapist, which would be a nonsensical

conclusion if Dr. Wolfe thought Mukamusoni's PTSD to be fabricated.

Viewed as a whole, the BIA's finding that the medical records

"undercut[]" rather than corroborated Mukamusoni's claim is simply

unsupportable.

7
The first bracketed portion is present in the doctor's note but
omitted by the BIA in its quotation. The word "eval." (presumably
the abbreviated form of "evaluation") is misquoted as "level" in
the BIA decision.

-26-
 The BIA also cited the fact that "[n]otwithstanding the

long continuance, [Mukamusoni] did not present [Dr. Wolfe] as a

witness, as she was unavailable" as further example of lack of

corroboration. This is not a fair or accurate characterization of

the history of the proceedings before the IJ. The record shows

that Mukamusoni made repeated offers to have Dr. Wolfe testify,

first in person, and then telephonically, but was not allowed to do

so by the IJ. The record also shows that the "long continuance"

was not granted by the IJ in order to have Mukamusoni secure Dr.

Wolfe's testimony.

There are other pieces of corroborative evidence in the

record that the BIA did not discuss and it is unclear whether the

BIA even considered them: the letter from Northwest Airlines and

lost luggage tracing claim forms confirming her lost luggage, her

Ugandan passport, her Rwandan identity card, and her student

identity card at Rwandan National University. Each of these

documents provided corroboration for crucial parts of Mukamusoni's

story. For example, the Ugandan passport corroborated her

testimony as the IJ asked her about her flight between Uganda and

Rwanda.

The BIA also made no mention of the background and

country conditions evidence that Mukamusoni submitted into the

record. In reviewing an applicant's claim of credible fear of

persecution, current regulations state that "the asylum officer may

-27-
rely on material provided by the Department of State . . . or other

credible sources, such as international organizations, private

voluntary agencies, news organizations, or academic institutions."

8 C.F.R. § 1208.12. Mukamusoni submitted into evidence the 1999

country conditions reports on Rwanda from Human Rights Watch,

Amnesty International, and the Department of State. Courts and the

BIA routinely used such country condition reports to corroborate

the testimony of asylum applicants under the old regulations.8 See

El Moraghy, 331 F.3d at 203-04 (country condition reports "can

either help or harm a petitioner's case, depending on whether or

not they corroborate the petitioner's tale"); see also Cordero-

Trejo, 40 F.3d at 490-91 (incidents of politically, socially or

religiously motivated persecution of non-prominent individuals in

applicant's position in his country of nationality bolstered

alien's claim). It was error for the BIA to have ignored the

country condition reports because "this failure [to evaluate the

reports] unreasonably eviscerate[d] the applicant's attempt to

establish the objective element of her asylum claim." Cordero-

Trejo, 40 F.3d at 492.

8
The old regulations made it clear that credibility should be
judged "in light of general conditions in the applicant's country
of nationality or last habitual residence." El Moraghy, 331 F.3d
at 203. Although the issue before us is not an agency's
determination of credibility, the country condition reports could
still be used to provide corroboration and support the applicant's
claims. See id. at 204.

-28-
 Such documentary evidence is "extremely important for

contextualizing, in the absence of direct corroboration, the events

which [an applicant] claims constitute persecution." Id. at 491.

Even a quick look at the country condition reports demonstrates

that these reports support Mukamusoni's claims. See Gailius, 147

F.3d at 45 n.6 ("[A]n uncorroborated story that is at odds with

what is known about country conditions is less likely to be

accurate than one that is consistent with country conditions.").

For example, the country reports corroborate Mukamusoni's account

of persons in her father's position joining the Hutu rebels in

Zaire and their subsequent deaths in the Kibeho camp. In addition,

the 1999 Human Rights Watch Report for Rwanda contains descriptions

of the practices of arbitrary detentions, prison abuses, and

military-civilian security sweeps carried out by the RPF government

which corroborate Mukamusoni's testimony of her experiences in

Rwanda: "The government, citing the need for self-defense against

the insurgency, organized civilians to monitor purportedly anti-

government activity . . . ." "Military, police, and some civilian

officials took thousands of persons into custody during large-scale

security sweeps, residential inspections, and verification of

identify papers on the roads. Some of these persons were

subsequently released after interrogation that was sometimes

accompanied by physical abuse." The BIA unreasonably ignored these

reports, and gave no explanation for why it did so.

-29-
 Not only did the BIA err in not adequately considering

the medical records and country condition reports as corroborative

of Mukamusoni's testimony, it also overstated the role of the

absence of certain pieces of corroborative evidence. The BIA

placed unreasonable weight on the absence of a letter from

Mukamusoni's friend Fi Fi corroborating Mukamusoni's claims.

Mukamusoni originally indicated to the IJ at the April 27, 2000

hearing that she could obtain such a letter. At the January 24,

2001 hearing, neither the IJ nor the parties brought up the letter

and it is unclear why (it appears that the IJ may not have included

the request for the letter in his notes of the previous hearing).

Mukamusoni did not offer an explanation for this absence before the

IJ and has not offered one on appeal.9 It is true that the absence

9
Mukamusoni's brief claims that her counsel offered to introduce
into evidence an affidavit that would have explained the efforts
made to obtain these "documents" and why the efforts failed (the
death certificate of Mukamusoni's father and the letter from Fi
Fi). This is not consistent with the transcript of the hearing,
which indicates that Mukamusoni's counsel only offered to explain
the absence of the death certificate, but not the letter.

The BIA did not discuss the absence of her father's death
certificate and it is unclear whether that played a role in the
BIA's finding that Mukamusoni did not submit sufficient
corroboration. We note in passing that the absence of her father's
death certificate is not particularly probative. "Persecutors are
hardly likely to provide their victims with affidavits attesting to
their acts of persecution." Bolanos-Hernandez v. INS, 767 F.2d
1277, 1285 (9th Cir. 1984). It does not appear likely that death
certificates would be available for the many individuals who died
during the Rwandan genocide, and Mukamusoni offered to document the
efforts expended to obtain a death certificate for her father (if
any existed) but that evidence was excluded by the IJ.

-30-
of this letter and any explanation for why it could not be

obtained, when Mukamusoni indicated that it would be available,

could tend to support the BIA's finding that Mukamusoni did not

produce sufficient corroboration. However, the absence of this one

letter is insufficient to justify disregarding the corroborative

evidence that Mukamusoni did provide. On this record, the BIA's

finding that Mukamusoni failed to introduce sufficient

corroborative evidence for her asylum claim is not supported by

substantial evidence. See Albathani, 318 F.3d at 372.

Mukamusoni's subjective fear

Finally, the BIA questioned the "genuineness" of

Mukamusoni's "subjective fear of persecution" in Rwanda because of

her "decision to remain at the school after two arrests and to

return to Rwanda on two occasions after the Rwandan government was

searching for her." This conclusion is again not supported by

substantial evidence in the record.

First, the conclusion is in error as a matter of law

because we find Mukamusoni, if credible, has met her burden of

proof with respect to past persecution in Rwanda, and thus the BIA

erred as a matter of law by denying her the benefit of the

regulatory presumption under 8 C.F.R. § 1208.13(b)(1).

Second, the BIA's doubts of the "genuineness" of

Mukamusoni's subjective fear are contrary to the BIA's decision not

to address her credibility.

-31-
 Third, the BIA also does not consider the evidence

outlined above. In the context of that evidence, the BIA's

assessment does not take into account the reasonable explanations

Mukamusoni offered for her decisions to remain at school in Rwanda

after her first year and to return to Rwanda to obtain her

transcripts despite the danger of being arrested again. Mukamusoni

specifically explained that after her first rape, she returned to

St. Mary's and was fearful of returning to Rwanda. However,

because the rape was so "ashaming and embarrassing" to her, she did

not tell Sister Catherine about the rape. It is in these

circumstances that Sister Catherine then urged her to return to

Rwanda and continue her studies, allaying Mukamusoni's fears by

assuring her that the RPF soldiers would not arrest her again now

that her father was dead. Mukamusoni was a twenty-year old first-

year college student at the time and Sister Catherine was her

guiding light. The assurances by Sister Catherine, as events

unfolded, turned out to be tragically overly optimistic. The

decision to remain in a country in which the applicant was

persecuted after release from prison does not necessarily undercut

an applicant's claim for asylum, if adequately explained. See,

e.g., Turcios v. INS, 821 F.2d 1396, 1401-02 (9th Cir. 1987)

(finding that it was unreasonable for the IJ to determine that the

government of the alien's country of origin would not have

persecuted him because the alien remained in that country for

-32-
several months after his release from prison when he was under

constant surveillance).

Moreover, Mukamusoni testified that after the death of

every member of her immediate family, she was without any means of

economic or emotional support excepting the generosity of Sister

Catherine. She testified in essence that there was literally

nothing for her to do in Uganda or Rwanda; her only means of

obtaining an education was at the National University of Rwanda,

where Rwandans are entitled to education at the government's

expense. A decision she made to go back to the only place where

she could obtain a "free" education, at Sister Catherine's urging,

is insufficient to show, against this record, that her fears of

persecution in Rwanda were not genuine. Faced with no viable means

of support otherwise, people take risks in the face of their fears.

Mukamusoni's subsequent entries into Rwanda to obtain her

transcripts were also motivated by both Sister Catherine's urging

and Mukamusoni's desperate attempt to preserve the possibility of

a better life through the hope of obtaining an education.10

Viewing the record as a whole, including the evidence the

BIA ignored and assuming Mukamusoni's credibility as did the BIA,

we cannot conscientiously find that the evidence supporting the

10
There was discussion in the BIA's opinion about Mukamusoni's
travels between Uganda and Rwanda, but the BIA's emphasis was on
her returns to Rwanda.

-33-
BIA's determination that Mukamusoni failed to meet her burden of

proof is substantial. See Universal Camera Corp., 340 U.S. at 488.

IV.

The order of the BIA is vacated and the case remanded for

further proceedings not inconsistent with this opinion.

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