Konjit Amenu v. Eric Holder, Jr.

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-2361

KONJIT AMENU,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration
Appeals.

Argued: October 28, 2010 Decided: June 13, 2011

Before KING, DAVIS, and KEENAN, Circuit Judges.

Petition for review granted; vacated and remanded by unpublished
per curiam opinion.

ARGUED: James Anthony Feroli, IMMIGRANT AND REFUGEE APPELLATE
CENTER, LLC, Alexandria, Virginia, for Petitioner. Matthew
Allan Spurlock, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent. ON BRIEF: Tony West, Assistant Attorney
General, Francis Fraser, Senior Litigation Counsel, Kate D.
Balaban, Civil Division, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Konjit Amenu — an Ethiopian citizen now residing in the

Washington, D.C. metropolitan area — petitions for review of the

November 13, 2009 final removal order of the Board of

Immigration Appeals. See In re Amenu (B.I.A. Nov. 13, 2009)

(the “BIA Order”). The BIA Order affirmed the January 7, 2008

decision of an immigration judge. See In re Amenu (Immigr. Ct.

Arlington, Va. Jan. 7, 2008) (the “IJ Decision”). 1 By virtue

thereof, Amenu’s requests for asylum, withholding of removal,

and protection under the United Nations Convention Against

Torture (the “CAT”), were each denied. Because the IJ and the

BIA misapprehended the facts, engaged in speculation, and

otherwise failed to properly consider relevant evidence, we

grant the petition for review, vacate the BIA Order, and remand.

I.

Amenu legally entered the United States in April 1988, but

remained in this country longer than authorized. In December

1988, Amenu filed an application for asylum, which was denied in

September 1989. In January 1990, the Immigration and

1
The BIA Order is found at J.A. 3-5, and the IJ Decision is
found at J.A. 45-54. (Citations herein to “J.A. __” refer to
the contents of the Joint Appendix filed by the parties in this
appeal.)

2
Naturalization Service (the “INS”) directed to Amenu an order to

show cause why she was not subject to deportation. Later, in

1990, Amenu’s case was “administratively closed” by an IJ

because her address was unavailable. In October 2006, the case

was recalendared at the joint request of Amenu and the

Department of Homeland Security (the “DHS”), which had absorbed

the INS in 2003. In February 2007, Amenu renewed her request

for relief by filing a new application, by which she sought

asylum, withholding of removal, and CAT protection. On August

13, 2007, the IJ conducted an evidentiary hearing on Amenu’s

application for relief.

A.

The evidence presented at the IJ hearing and the materials

filed in support of Amenu’s application revealed the following.

Amenu’s father served in Ethiopia’s cabinet when Haile Selassie

was the Emperor of Ethiopia. 2 After the so-called Derg regime

overthrew Emperor Selassie’s government in 1974, the Derg

authorities arrested Amenu’s father and detained him for seven

years. The Derg authorities also arrested and detained Amenu on

2
Haile Selassie reigned as Ethiopia’s Emperor from 1930
until 1974. Selassie gained international recognition by
fending off an invasion of his country by Italy in 1935, and by
participating prominently in the funeral of President John F.
Kennedy in 1963, walking alongside French President Charles de
Gaulle behind the caisson carrying the assassinated President to
Arlington National Cemetery.

3
three separate occasions. She was first detained in 1978 in

Ethiopia for fifteen days while the Derg authorities determined

whether Amenu’s father had concealed property belonging to

Emperor Selassie. Amenu was next detained in 1984 for twenty-

four hours because she had not participated in a mandatory “May

Day” demonstration. Amenu’s third detention by the Derg was her

longest — in 1987, she was held for twenty-five days upon

refusing to accept her nomination to the Executive Committee of

the Women’s Association, a position she believed would be used

for propaganda purposes. During her 1987 confinement, Derg

soldiers beat and kicked Amenu. She was eventually released,

and thereafter travelled to and entered the United States as a

nonimmigrant visitor. The Derg regime was overthrown in 1991

and a different regime, called the Ethiopian People’s

Revolutionary Democratic Front (the “EPRDF”), now controls

Ethiopia’s government.

Amenu’s application for relief expressed fear that she

would face persecution from the EPRDF government if she returns

to Ethiopia. To substantiate her application, Amenu appended

and filed several supporting exhibits and testified at the IJ

hearing. The exhibits included State Department reports

concerning political conditions in Ethiopia, a picture of Amenu

participating in a demonstration against the EPRDF government,

the affidavit of a woman named Ghennet Girma Woldegiorgis,

4
correspondence showing Amenu’s efforts to depose Woldegiorgis,

and a legal memorandum supporting Amenu’s application for

relief.

At the IJ hearing, Amenu testified that she has been a

member, since about 1995, of the Ethiopian People’s

Revolutionary Party (the “EPRP”), a political organization that

opposes the EPRDF government. According to the 2007 Ethiopia

Asylum Country Profile (the “2007 Report”), the EPRP is among

the “[m]ajor [p]olitical organizations in the Diaspora” not

registered with Ethiopia’s mandatory National Election Board.

J.A. 203; see id. at 236. The EPRDF government does not

recognize the EPRP or allow it to operate in Ethiopia. See id.

at 87, 251. Amenu also testified that she has attended EPRP

meetings since 1995 “[a]t least once a month” and has

participated in EPRP demonstrations “two to three times a year,”

for a total of “about fifteen” demonstrations. Id. at 106-07,

129. Amenu appended to her application for relief two letters

from the EPRP’s Washington, D.C. office, dated in 2000 and 2006,

which confirmed that she is an “active member” of the EPRP and

expressed concern that she “will face an imminent danger to her

life and safety” should she return to Ethiopia. Id. at 212-13.

5
 Elaborating on Amenu’s EPRP activities was the affidavit of

Ghennet Girma Woldegiorgis. 3 Woldegiorgis is a close childhood

friend of Amenu, and — despite being the daughter of the current

Ethiopian President — is “one of the prominent figures of” the

EPRP. J.A. 251. Woldegiorgis herself fled Ethiopia in the

1970s, joined the EPRP in 1975, and was granted asylum by France

in 1981. In 1993, Woldegiorgis travelled to Ethiopia to attend

a “Peace and Reconciliation Conference,” during which the EPRDF

detained her. Woldegiorgis now regularly travels to Washington,

D.C., where she coordinates and attends EPRP events. On her

visits to the United States, Woldegiorgis and Amenu are together

“frequently” for EPRP meetings, dinners, and other public social

3
Her affidavit revealed that Woldegiorgis “would have loved
to testify in person” at the IJ hearing, but her “authorized
stay [in the United States] would have expired” by the date on
which the hearing was scheduled. J.A. 250. Because
Woldegiorgis was unavailable for the hearing, Amenu sought the
IJ’s permission to depose Woldegiorgis before she left the
country. At a preliminary meeting conducted by the IJ on April
17, 2007, the IJ advised the parties that he would accept such a
deposition if both sides agreed to it. The IJ further advised
that, absent such an agreement, Amenu could “submit an affidavit
from [Woldegiorgis].” Id. at 64-65. By her letter of the same
day, Amenu sought permission from the DHS Chief Counsel to take
the deposition, with the costs to be paid by her. She also
advised that Woldegiorgis would depart the United States in less
than two weeks, on April 30, 2007. On April 24, 2007, the DHS
Chief Counsel declined to agree to the deposition. Accordingly,
pursuant to the IJ’s authorization, Amenu submitted the
Woldegiorgis affidavit for the IJ’s consideration.

6
gatherings. Id.; see id. at 87 (Amenu’s testimony corroborating

same).

The Woldegiorgis affidavit attested to Amenu’s EPRP

activities, including her attendance at meetings, her

distribution of leaflets, and her participation in

demonstrations. Woldegiorgis further declared, “I know that the

Ethiopian government through its embassy monitors my activity in

Washington, D.C.,” keeping an eye on the persons “with whom I

socialize, attend meetings and so on.” J.A. 251. According to

the affidavit, because of Amenu’s attendance at EPRP

demonstrations and her association with Woldegiorgis, “[t]he

EPRDF government is aware of [Amenu]’s EPRP activities,” and

Amenu “would face grave danger to her life” if she returns to

Ethiopia. Id. Amenu echoed Woldegiorgis’s concern that their

visible association would attract the attention of the EPRDF and

cause Amenu to be persecuted. See id. at 87, 348.

Amenu is also a supporter of the All Amhara People’s

Organization (the “AAPO”), an opposition group that advocates on

behalf of those Ethiopians of Amhara heritage, a loose

description of the ethnic group that historically has ruled

Ethiopia. Some tensions exist between Amharas and the EPRDF,

although it is unlikely that a person “would be targeted simply

because of his or her Amhara ethnicity.” J.A. 186. Amenu has

donated money to and distributed pamphlets in support of the

7
AAPO. Amenu testified that the EPRDF twice arrested her older

brother for his involvement with the AAPO, after which he fled

to the United States, where he was granted asylum. According to

Amenu, the EPRDF sought to kill her younger brother, who then

fled to Kenya, where he died. Amenu testified that both of her

brothers were “prominent individuals” in the AAPO in Ethiopia.

J.A. 110. She also confirmed that the EPRDF authorities killed

her nephew.

Another of the exhibits to Amenu’s application for relief

was Ethiopia’s entry for the 2006 State Department Country

Reports on Human Rights Practices (the “2006 Report”). The

introductory portion to the 2006 Report observed that

“opposition parties [in Ethiopia] engaged in a steady process of

consolidation” in a series of elections in 2005, but that the

EPRDF remains in power and has suppressed opposition political

groups. J.A. 223. In addition, the 2006 Report recited

information concerning several human rights abuses in Ethiopia,

including the following:

limitation[s] on citizens’ right to change their
government during the most recent elections; unlawful
killings, and beating, abuse, and mistreatment of
detainees and opposition supporters; [and] arbitrary
arrest and detention, particularly [of] those
suspected of sympathizing with or being members of the
opposition.

Id. In the 2005 elections, “[o]pposition parties made an

unexpectedly strong showing, increasing their parliamentary

8
representation from 12 . . . to 172” of 547 seats, with the

EPRDF controlling 372 seats. Id. at 238. In those same

elections, however, “[o]bservers reported killings,

disappearances, voter intimidation and harassment, and unlawful

detentions of opposition party supporters, particularly in the

Amhara” and certain other regions of the country. Id. (emphasis

added). Protests later in 2005 resulted in the arrest of

“several dozen opposition leaders,” the detention of between

30,000 and 50,000 demonstrators without charge, and “arbitrary

detention and killings” by the military. Id. at 239.

B.

By the IJ Decision of January 7, 2008, Amenu’s three

requests for relief were denied. According to the IJ, “[i]t is

not reasonable to conclude that [Amenu] would be targeted by the

current government and face problems upon her return to Ethiopia

today.” IJ Decision 8. The IJ found that Amenu testified

credibly regarding her father’s involvement in the Selassie

government and her detentions at the hands of the Derg regime.

Notably, the IJ recited what was purported to be Amenu’s

testimony that, during an interrogation following her third Derg

detention in Ethiopia, a military leader told Amenu “that the

regime knew she was involved in the EPRDF.” Id. at 3, 6. The

IJ thus determined that Amenu had suffered past persecution

based on her third arrest and detention. Notwithstanding such

9
past persecution, however, the IJ found that Amenu did not have

a well-founded fear of future persecution, on the ground that

the overthrow of the Derg regime constituted a fundamental

change in circumstances. 4

The IJ also assessed whether Amenu had shown a well-founded

fear of persecution due to her AAPO associations and EPRP

activities. The IJ recited that Amenu’s “primary argument is

that the authorities will persecute her because of her Amhara

ethnicity,” which is unrelated to the Derg regime’s persecution

of her. IJ Decision 7. The IJ then found that Amenu had not

demonstrated “a reasonable likelihood that the government will

target her based on her ethnicity alone,” because “nothing in

the record . . . indicates that the government targets

individuals for persecution solely because of their Amhara

ethnicity.” Id. With respect to Amenu’s associations with and

support for the AAPO, the IJ “recognize[d] that the government

has continued to attack AAPO members in Ethiopia.” Id. at 8.

Nevertheless, the IJ determined that Amenu had not demonstrated

4
As explained more fully in Part III.A hereof, a finding of
past persecution entitles an asylum applicant to a presumption
that she has a well-founded fear of related future persecution.
This presumption may be rebutted by a finding that a
“fundamental change in circumstances” has occurred in the
relevant country. If an applicant’s fear of future persecution
is not related to her past persecution, the presumption does not
apply.

10
a well-founded fear of persecution because she “was never

involved in the AAPO in Ethiopia” and “has not indicated that

the Ethiopian government continues to target her brother or

nephew for [their AAPO] activities.” Id.

The IJ accepted Amenu’s claim of membership in the EPRP,

but found that she was “exaggerating the scope of her current

EPRP activities.” IJ Decision 5. The IJ recognized that “human

rights violations continue to occur against political opponents

[under] the ruling government” and that “the ruling government

has previously persecuted EPRP activists.” Id. at 7 (citing the

2006 Report). Nonetheless, the IJ offered multiple grounds for

his determination that Amenu had failed to show a well-founded

fear of persecution on account of her EPRP activities:

• Amenu “admitted that she used to attend monthly
EPRP meetings, but now goes to EPRP events only
‘two to three times per year.’” Id. at 5.
Because she is not an EPRP “leader” and her
activities are “very minimal,” she is “not . . .
active enough in the EPRP to draw attention by
the Ethiopian authorities as a political
opponent,” id.;

• The “letter [from the EPRP] does not refer to any
specific current activities, but simply states in
a conclusory manner that she is an ‘active
member’ of the Washington, [D.C.] branch,” and no
evidence shows that active membership “means
anything more than paying annual membership
dues,” id.;

• Amenu “did not participate in the [EPRP] in
Ethiopia, where the government had targeted
opponents,” id. at 7;

11
 • The EPRP “is becoming a decreasingly significant
political entity” that “no longer merits
inclusion in the State Department reports,” id.
(citing, inter alia, the 2007 Report);

• The Woldegiorgis affidavit “fails to show that
[Amenu] more than minimally participates in EPRP
activities.” Id. at 6. “Moreover, in the
absence of other credible testimony and
corroborating evidence, self-serving affidavits
from individuals who are biased in support of a
friend are not sufficient to establish a
respondent’s claims,” id.; and

• According to the 2006 Report, opposition parties
in Ethiopia “have engaged in a steady process of
consolidation” and “have made an unexpectedly
strong showing in recent elections,” while “major
changes” have occurred in the EPRDF government,
id. at 7.

Accordingly, the IJ Decision denied Amenu’s application for

relief. The BIA Order, filed on November 13, 2009, adopted the

IJ Decision. In supplementing the IJ Decision, the BIA

explained that, “[a]lthough the [EPRDF] is not above reproach,”

the State Department material appended to Amenu’s application

“actually indicates that individuals have more access to freedom

of expression, political participation, and rule of law.” BIA

Order 2.

Amenu thereafter filed her petition for review. By order

of January 4, 2010, a panel of this Court granted Amenu’s

unopposed motion for a stay of the BIA Order pending our

disposition of this matter. We possess jurisdiction pursuant to

the provisions of 8 U.S.C. § 1252.

12
 II.

When the BIA has adopted and supplemented an IJ decision,

we review both rulings for substantial evidence. Jian Tao Lin

v. Holder, 611 F.3d 228, 235 (4th Cir. 2010). In applying this

standard of review, factual findings “are conclusive unless any

reasonable adjudicator would be compelled to conclude to the

contrary,” 8 U.S.C. § 1252(b)(4)(B), and an assessment of

witness credibility constitutes such a finding. See Kourouma v.

Holder, 588 F.3d 234, 240 (4th Cir. 2009).

III.

In order to properly assess Amenu’s petition for review, we

first trace the legal architecture of her requests for asylum,

withholding of removal, and CAT relief. We then describe the IJ

and BIA’s obligation to consider the relevant evidence and offer

cogent reasons for their decisions. Applying those principles

to Amenu’s petition for review, we identify several errors.

Finally, we evaluate whether those errors were harmless.

A.

In order to gain eligibility for asylum, Amenu must satisfy

the relevant requirements for refugee status. As applicable

here, the term “refugee” means an alien “who is unable or

unwilling to return to” her native country “because of

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

13
race, religion, nationality, membership in a particular social

group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). An

applicant bears the burden of demonstrating that she is a

refugee. 8 C.F.R. § 1208.13(a). The applicant “may qualify as

a refugee either because . . . she has suffered past persecution

or because . . . she has a well-founded fear of future

persecution.” Id. § 1208.13(b). If the applicant demonstrates

that she has suffered past persecution on account of a protected

ground, she is “presumed to have a well-founded fear of

persecution on the basis of the original claim”; if the fear of

future persecution is “unrelated to the past persecution,”

however, the presumption does not apply. Id. § 1208.13(b)(1).

If the presumption applies, it may be rebutted by an IJ finding

by a preponderance of the evidence that, inter alia, “[t]here

has been a fundamental change in circumstances such that the

applicant no longer has a well-founded fear of persecution.”

Id. § 1208.13(b)(1)(i)(A).

If the presumption does not apply or is rebutted, an

applicant may still possess a well-founded fear of future

persecution. The applicant’s fear of persecution is well-

founded if (1) she subjectively fears persecution in her native

country on account of a protected ground, (2) “[t]here is a

reasonable possibility” of such persecution if she returns, and

(3) she is unable or unwilling to return to or avail herself of

14
the protection of her country because of fear, unless (4) she

could avoid persecution by relocating to another part of the

country and it is reasonable to expect her to do so. 8 C.F.R.

§ 1208.13(b)(2)(i)(A)-(C), (ii).

As relevant here, an applicant is entitled to withholding

of removal if she “establish[es] that it is more likely than not

that . . . she would be persecuted on account of [a protected

ground] upon removal.” 8 C.F.R. § 208.16(b)(2). If the

applicant “fail[s] to establish the less stringent . . .

standard of proof required for asylum relief,” she “is

necessarily also unable to establish” the “more demanding”

standard of proof required for withholding of removal. Abdel-

Rahman v. Gonzales, 493 F.3d 444, 449 (4th Cir. 2007). Finally,

an applicant is entitled to protection under the CAT if she

establishes that she “is more likely than not to be tortured in

the country of removal.” 8 C.F.R. § 208.16(c)(2), (4).

B.

The Supreme Court has recognized that a proper judicial

review of an agency decision “requires that the grounds upon

which the administrative agency acted be clearly disclosed and

adequately sustained.” SEC v. Chenery Corp., 318 U.S. 80, 94

(1943). We have applied Chenery to petitions seeking review of

BIA removal orders, explaining that, where “a BIA order does not

demonstrate that the agency has considered an issue, ‘the proper

15
course, except in rare circumstances, is to remand to the agency

for additional investigation or explanation.’” Nken v. Holder,

585 F.3d 818, 822 (4th Cir. 2009) (quoting INS v. Orlando

Ventura, 537 U.S. 12, 16 (2002) (per curiam)). In conducting

such a review, it is “our responsibility to ensure that

unrebutted, legally significant evidence is not arbitrarily

ignored by the factfinder.” Baharon v. Holder, 588 F.3d 228,

233 (4th Cir. 2009). As we have explained, “[t]hose who flee

persecution and seek refuge under our laws have the right to

know that the evidence they present of mistreatment in their

home country will be fairly considered and weighed by those who

decide their fate.” Id.

Accordingly, an IJ cannot “base [a] decision on only

isolated snippets of [the] record while disregarding the rest.”

Baharon, 588 F.3d at 233. Similarly, an IJ may not “distort[]

or disregard[] important aspects of the alien’s claim,” or rule

based “on an inaccurate perception of the record.” Jian Tao Lin

v. Holder, 611 F.3d 228, 237 (4th Cir. 2010) (internal quotation

marks omitted). Nor may an IJ “rely on speculation, conjecture,

or an otherwise unsupported personal opinion to discredit an

applicant’s testimony or [her] corroborating evidence.” Id.

(quoting Marynenka v. Holder, 592 F.3d 594, 601 (4th Cir.

2010)). Instead, “an IJ who rejects a witness’s positive

testimony . . . should offer a specific, cogent reason for . . .

16
disbelief.” Id. at 235-36 (internal quotation marks omitted).

At the same time, the obligation to provide a “specific and

cogent reason” does not “imply that an IJ must provide extensive

reasons for each and every item of testimony that is rejected,”

but rather “leaves ample room for the IJ to exercise common

sense in rejecting an applicant’s testimony even if the IJ

cannot point to contrary evidence in the record to refute it.”

Tewabe v. Gonzales, 446 F.3d 533, 540 (4th Cir. 2006) (internal

quotation marks and alterations omitted).

C.

Our review of the IJ Decision and the BIA Order reveals a

pattern of factual misapprehensions — not only of the evidence

before the IJ, but also concerning the nature of Amenu’s claims

— as well as several instances of speculation and conjecture.

1.

As to the first category of errors, we identify at least

six factual misapprehensions involving evidence going to the

heart of Amenu’s claims. Specifically, the IJ Decision

inaccurately characterizes Amenu’s claims; misapprehends her

testimony regarding her EPRP activities; crafts a factual

finding on the basis of testimony that she never gave; omits

specific corroborative factual statements in the Woldegiorgis

affidavit; relies on an inaccurate portrait of the status of

Amenu’s family members; and erroneously asserts that the EPRP is

17
not significant enough to be listed in the State Department’s

reports about Ethiopia.

First, the IJ misportrays Amenu’s “primary argument” as

being that she would face persecution because of her “Amhara

ethnicity,” and then knocks down this straw by reasoning that

the EPRDF does not target individuals “solely” on account of

their Amhara ethnicity. See IJ Decision 7. In fact, Amenu’s

avowed fear of persecution stems not from her ethnicity as such,

but from her EPRP activities and her activities on behalf of

(and family ties to prominent members of) the AAPO. Indeed,

Amenu’s application for relief describes her fear, reiterated in

her testimony and in the Woldegiorgis affidavit, that she will

face persecution “because of her actual or imputed opposition to

the EPRDF and on suspicion of membership in opposition political

organizations.” J.A. 348.

Second, the IJ misapprehends Amenu’s testimony regarding

her EPRP activities. Specifically, the IJ describes Amenu’s

“admi[ssion]” that “she used to attend monthly EPRP meetings,

but now goes to EPRP events only ‘two to three times per year.’”

IJ Decision 5. Amenu made no such admission. Rather, she

testified that, since 1995, she has consistently attended

monthly EPRP meetings and attended an average of two to three

EPRP demonstrations per year. The IJ thus conflated

demonstrations with meetings, and his finding that Amenu was not

18
sufficiently active in the EPRP to justify the EPRDF’s attention

is therefore faulty, as it proceeds from an inaccurate

perception of Amenu’s avowed level of EPRP participation.

Third, the IJ fashions a finding — apparently from whole

cloth — that, during an interrogation following her third

arrest, a Derg military leader told Amenu that they knew of her

EPRDF activities. See IJ Decision 3, 6. From this, the IJ

Decision intimates that, because the Derg regime has been

overthrown and the EPRDF is now in power, Amenu has nothing to

fear from the current government. Amenu, however, gave no such

testimony, and there is no evidence suggesting that she has ever

been involved with the EPRDF government.

Fourth, the IJ omits important aspects of the Woldegiorgis

affidavit from his analysis. Those omitted portions explain

Woldegiorgis’s prominence in the EPRP, her close friendship and

frequent public outings with Amenu, and Woldegiorgis’s belief

that the EPRDF is aware of Amenu’s participation in the EPRP

because the EPRDF monitors the EPRP events that Amenu attends.

It appears that the IJ summarily rejected those aspects of the

Woldegiorgis affidavit on the sole ground that he deemed the

affidavit to be a “self-serving” statement from someone “biased

in support of a friend” for which there was no “other credible

testimony and corroborative evidence.” IJ Decision 6. The IJ

was not entitled, however, to invoke such a ground for

19
disbelieving Woldegiorgis’s factual assertions, and in doing so

“disregard[ed] important aspects of [Amenu’s] claim[s].” Jian

Tao Lin, 611 F.3d at 237. As to corroboration, we have

explained that “[t]here is no general rule that evidence offered

in corroboration requires independent corroboration,” and

therefore such evidence cannot “be discredited on the ground

that it automatically require[s] corroboration.” Marynenka, 592

F.3d at 602.

Nor does the IJ’s blanket allegation of bias justify his

discrediting of Woldegiorgis’s factual assertions. We begin by

observing that the IJ’s description of the affidavit as “self-

serving” is misplaced, as the affidavit was on behalf of Amenu

only, and there was never an assertion that Woldegiorgis

received any benefit from executing it. The IJ also erred in

describing Woldegiorgis merely as Amenu’s “friend” — she is also

a prominent figure in the EPRP who has attracted additional

attention from the EPRDF government because she is the daughter

of Ethiopia’s President. As we have explained, a letter from a

party leader on behalf of a member seeking asylum can both

corroborate and provide independent support for an applicant’s

claims, and the IJ is not free to “completely ignore[]” such

evidence. Camara v. Ashcroft, 378 F.3d 361, 369-70 (4th Cir.

2004). Moreover, the IJ failed to offer a “specific and cogent”

reason to reject Woldegiorgis’s factual specifications.

20
Marynenka, 592 F.3d at 601. The IJ is not free to summarily

reject an affiant’s uncontroverted and plausible factual

allegations. As we explained in Tewabe, an immigration case

where the IJ “attached the bare label ‘implausible’ to [the

applicant]’s testimony without providing specific and cogent

reasons for doing so,” such an “unexplained characterization is

unsustainable because [the applicant]’s testimony is not

inherently implausible.” 446 F.3d at 539. Indeed, in Tewabe,

the witness was more likely to be “biased” than Woldegiorgis, as

the witness there was the applicant herself.

Fifth, the IJ relies on an “inaccurate perception” of the

status of Amenu’s family members. Jian Tao Lin, 611 F.3d at

237. The IJ Decision was premised in part on Amenu’s perceived

failure to show “that the Ethiopian government continues to

target her brother or nephew” for their AAPO activities. IJ

Decision 8. This aspect of the IJ’s reasoning is erroneous. It

is also somewhat perplexing because the IJ Decision elsewhere

recites Amenu’s testimony that her nephew died at the hands of

the EPRDF and that her brother fled from the EPRDF to the United

States, where he was granted asylum. The IJ Decision also

overlooks Amenu’s testimony that another brother died in Kenya

after fleeing the EPRDF. Clearly, the EPRDF is incapable of

“continu[ing] to target” Amenu’s family members, and thus the IJ

erred in expecting Amenu to produce evidence thereof. Moreover,

21
the IJ Decision was issued without the benefit of our recent

decision in Baharon, where we explained that “[v]iolence or

threats to one’s close relatives is an important factor” in

determining whether an applicant has a well-founded fear of

persecution. 588 F.3d at 232.

Sixth, the IJ erroneously asserts that the EPRP is

“decreasingly significant” because it “no longer merits

inclusion in the State Department reports.” IJ Decision 7

(citing, inter alia, the 2007 Report). Strikingly, the EPRP is

listed as a “[m]ajor [p]olitical organization[]” in one of the

very reports that the IJ Decision perceives as not mentioning

the EPRP at all. J.A. 203 (the 2007 Report).

2.

The second category of errors in the IJ Decision is the

speculation and conjecture that it utilizes to support the

proposition that Amenu failed to demonstrate a well-founded fear

of persecution. As explained above, an IJ is not entitled to

engage in speculation or conjecture, or rely on unsupported

personal opinion, to discredit an applicant’s evidence. See

Marynenka, 592 F.3d at 601. Three specific aspects of the IJ

Decision contravene this settled principle.

First, the IJ’s conclusion that Amenu is unlikely to stand

out as an EPRDF opponent because she has never held a leadership

position in the EPRP — and engaged in only limited activities

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for the EPRP — is entirely speculative, and overlooks the

likelihood that Amenu would stand out as an EPRDF opponent for

multiple reasons. We need not look far to identify how Amenu’s

opposition activities could otherwise come to the EPRDF’s

attention — namely, her close friendship and frequent public

outings with Woldegiorgis, an EPRP leader and daughter of the

Ethiopian President whose uncontroverted affidavit specifies

that (1) her own activities are monitored by the EPRDF and (2)

the EPRDF is aware of Amenu’s involvement with the EPRP.

Indeed, Amenu expressed her personal fear of the EPRDF

government on account of those associations, both in her

application for relief and in her testimony. See J.A. 87, 348.

Moreover, the State Department reports make clear that the

EPRDF’s suppression of contrary views is hardly limited to those

at the upper echelons of opposition groups. Those reports

reveal multiple human rights violations against individuals

other than opposition leaders — including “unlawful killings,

and beating, abuse, and mistreatment of detainees and opposition

supporters by security forces,” as well as “arbitrary arrest and

detention, particularly [of] those suspected of sympathizing

with or being members of the opposition.” Id. at 223 (emphasis

added); see also id. at 225-26, 235, 239.

Second, it was speculative for the IJ to assert that Amenu

is not likely to face persecution because she did not

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participate in the EPRP or the AAPO in Ethiopia. See IJ

Decision 7-8. Such reasoning appears to rest on the

questionable premise that the EPRDF will persecute only those

who have engaged in opposition activities within the

geographical bounds of Ethiopia. The IJ offers no evidentiary

support for this premise, and we are unwilling to accept it,

especially when the IJ “recognizes that the [EPRDF] has

continued to attack AAPO members in Ethiopia.” Id. at 8. Put

simply, “there is nothing implausible about the idea that” the

EPRDF will persecute, on their return to Ethiopia, individuals

who have engaged in opposition activities while abroad. Camara,

378 F.3d at 369 (rejecting IJ’s adverse credibility finding

because IJ’s reasoning was “based only on speculation”).

Indeed, the IJ’s premise in this regard is contradicted because,

when Woldegiorgis returned to Ethiopia for the 1993 conference,

the EPRDF government detained her.

Finally, the IJ’s conclusion that Amenu is not likely to

face persecution because the EPRP is “a decreasingly significant

political entity” is also based on speculation and conjecture.

That is, the IJ’s conclusion is premised on the dubious

assumption that the EPRDF will persecute individuals involved in

an opposition group only so long as it perceives the group as

significant. Yet the IJ offers no basis for the proposition

that the EPRDF — which, he concedes, continues to contravene the

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human rights of political opponents, see IJ Decision 7 — would

cease to persecute members of an opposition group (like the

EPRP) that it had previously persecuted, simply on account of

the group’s diminishing prominence.

D.

Having identified errors in the IJ Decision (and, by

extension, the BIA Order), we must, in deciding whether to

vacate and remand, also assess whether those errors are

harmless. See Ngarurih v. Ashcroft, 371 F.3d 182, 190 n.8 (4th

Cir. 2004) (explaining that harmless error analysis applies to

immigration cases). Even where the agency has failed to

consider all the evidence or where some of the reasons offered

for its decision are invalid, we may yet affirm if “the alleged

error clearly had no bearing on the . . . substance of the

decision reached.” Id. (internal quotation marks omitted). By

contrast, we have remanded where, “[w]ithout [its] erroneous

perception of the record, it is far from clear that the

[adjudicator] would have” made the inferences and conclusions

that it made, Jian Tao Lin, 611 F.3d at 238; if “it is not

apparent from the [agency] order that it considered the crux of

[the applicant’s] argument,” Nken, 585 F.3d at 823; or if “it is

likely that the [adjudicator] would have reached a different

outcome if he had given due consideration to the independent

25
evidence that he [improperly] discounted,” Anim v. Mukasey, 535

F.3d 243, 261 (4th Cir. 2008).

In these circumstances, we are unable to say that the IJ

and the BIA would reach the same decision again, if they

properly assess the evidence and refrain from speculation and

conjecture. To begin with, the IJ’s speculative assumptions

taint his reasoning, and removing even one of these pillars

could well result in a different outcome. We are just as

skeptical that the IJ’s misapprehensions of fact were harmless.

To begin with, the prejudice to Amenu is self-evident, in that

the IJ expressly relies on his erroneous perceptions of three

crucial facts: Amenu’s avowed level of EPRP activities; the

“decreasing[] significan[ce]” of the EPRP; and the absence of

ongoing persecution against Amenu’s family members. See IJ

Decision 7.

We are also convinced that the IJ’s treatment of the

Woldegiorgis affidavit was prejudicial. Cf. Gonahasa v. INS,

181 F.3d 538, 542 n.2 (4th Cir. 1999) (finding agency’s failure

to consider affidavit from applicant’s spouse to be harmless,

where most of affidavit related to issue upon which applicant

prevailed in agency proceedings and balance of affidavit did not

undermine BIA’s reasoning). The IJ’s failure to fully assess

Woldegiorgis’s uncontroverted factual statements prejudiced

Amenu in at least two respects. First, such failure caused the

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IJ to overlook how those corroborative facts lend credence to

Amenu’s claim that the EPRDF is aware of her EPRP activities

because of her association with Woldegiorgis and participation

in monitored demonstrations. Second, such failure resulted in

the IJ overlooking the possibility that the EPRDF might become

aware of and persecute Amenu, not only because of her level of

EPRP activities, but also because of her visible association

with a prominent opposition figure whose social and political

activities the EPRDF monitors.

IV.

Pursuant to the foregoing, we grant Amenu’s petition for

review, vacate the BIA Order, and remand for such other and

further proceedings as may be appropriate.

PETITION FOR REVIEW GRANTED;
VACATED AND REMANDED

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