In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐2603
ANA VERONICA JIMENEZ FERREIRA,
Petitioner,
v.
LORETTA E. LYNCH,
Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals
No. A200 892 195
____________________
ARGUED JUNE 8, 2016 — DECIDED JULY 12, 2016
RE‐ISSUED AS OPINION AUGUST 5, 2016
____________________
Before BAUER, MANION, and KANNE, Circuit Judges.
PER CURIAM. Ana Veronica Jimenez Ferreira, a 40‐year‐old
native and citizen of the Dominican Republic, applied for asy‐
lum and withholding of removal based on her membership in
a social group that she describes as Dominican women in re‐
2 No. 15‐2603
lationships they cannot leave. Jimenez testified in immigra‐
tion court that she fled to the United States because the gov‐
ernment of her home country would not protect her from her
common‐law husband, who had raped, beaten, and kid‐
napped her, and who continually stalked her and threatened
to kill her and her two children. The immigration judge de‐
nied relief on the grounds that Jimenez was not credible and
lacked corroborating evidence, and the Board of Immigra‐
tion Appeals upheld the IJ’s decision. The agency’s adverse
credibility determination was based largely on purported in‐
consistencies between Jimenez’s testimony at the removal
hearing and her earlier statements to an asylum officer during
a “credible‐fear” interview. We conclude that the agency
erred by (1) failing to address Jimenez’s argument that the
notes from the credible‐fear interview are unreliable and
therefore an improper basis for an adverse credibility finding
and (2) ignoring material documentary evidence that corrob‐
orates Jimenez’s testimony. Accordingly, we grant Jimenez’s
petition for review and remand for further proceedings.
Jimenez traveled from the Dominican Republic to the
United States with the help of a human smuggler hired by her
family. She left her home country in August 2010, first flying
to Guatemala, then being smuggled north across Mexico on
buses and trucks, and finally entering the United States on
foot two weeks later in Laredo, Texas. Jimenez was immedi‐
ately detained by border patrol and interviewed by an immi‐
gration officer. When asked whether she had any fear of re‐
turning to the Dominican Republic, she replied that she did
not.
Three weeks into her detention, Jimenez told an asylum
officer that she had come to the United States to escape her
No. 15‐2603 3
common‐law husband, Ramon Holguin, a man who had
beaten and raped her, and who (after Jimenez left him)
stalked and threatened her. Jimenez, who speaks only Span‐
ish, disclosed this information through a translator during a
telephonic credible‐fear interview—an interview meant to de‐
termine whether she could potentially be eligible for asylum
or withholding of removal. The asylum officer who inter‐
viewed Jimenez concluded that “[t]here is a significant possi‐
bility that the assertions underlying [her] claim could be
found credible in a full asylum or withholding of removal
hearing.”
Jimenez was released a few weeks later in November 2010,
when bond was posted by her children’s father—her first hus‐
band, Gerardo Marte, a Dominican citizen who now lives in
Chicago and is a lawful permanent resident of the
United States. In a motion filed before her removal hearing,
Jimenez conceded that she was removable as an alien who
lacked valid immigration documents, see 8 U.S.C.
§ 1182(a)(7)(A)(i)(I), but asserted that she sought asylum and
withholding of removal. (She also sought protection under
the Convention Against Torture but has abandoned that claim
on petition for review.)
Jimenez was the only person to testify at her 2013 removal
hearing. Speaking through an interpreter, she provided the
following account: She was living with Holguin in
Santo Domingo when in 2007, despite his objections, she took
her children to a Christmas party hosted by her ex‐husband’s
family. When she returned from the party, Holguin beat and
choked her in front of her son and threatened to kill her. He
then forced her to the bedroom and raped her. Jimenez testi‐
fied that after the attack she hid with her children at a friend’s
4 No. 15‐2603
house and filed a complaint with the police. Holguin was ar‐
rested but released from jail after four days. (There is no indi‐
cation in the record that he was ever prosecuted for the inci‐
dent.) After his release from jail, Holguin went to Jimenez’s
office every day and told her that she “had to go back to him
or else he was going to kill [her] and [her] children.” To es‐
cape Holguin, Jimenez quit her job in Santo Domingo and
moved back to her home town of Bonao (roughly 50 miles
away), where she lived with her children and her mother.
About a year after the move, in early 2009, Holguin forced
his way into Jimenez’s apartment. He beat Jimenez and
threatened to kill her, but bolted when her mother called the
neighbors for help. Two months later, Jimenez said, she was
walking outside when Holguin grabbed her, forced her into
his car, drove her to an isolated part of the woods, and raped
her. Jimenez testified that she didn’t report the attack to the
police because she didn’t “believe in the police any more.”
She stated that in Santo Domingo, where she had reported
Holguin’s first assault, “when you go report something to the
police, the person turns up dead later because they don’t help
anybody. They don’t help the women.”
After the mid‐2009 kidnapping and sexual assault,
Jimenez began receiving letters from Holguin in which he
threatened to kill her and her children if she didn’t come back
to him. Believing that Holguin would eventually kill her if she
stayed in the Dominican Republic, Jimenez fled to the
United States. She explained that she left her children in the
Dominican Republic because she couldn’t bring them with
her but said that she speaks to them “[e]very day” and that
she plans to bring them to the United States if granted asylum.
No. 15‐2603 5
Since Jimenez left her home country, Holguin has been send‐
ing threatening letters to her mother, warning that if Jimenez
doesn’t return, “he’s going to kill them all.” Jimenez’s mother
has reported these letters to the police, but the police “don’t
do anything.”
The government attorney questioned Jimenez about a dis‐
crepancy between the notes of her credible‐fear interview—
which indicated that the last time Holguin raped her was in
her bedroom—and her testimony that he had last raped her
in the woods. Jimenez responded that, when interviewed by
the asylum officer over the phone, she “was detained” and
“had just crossed the border,” and that she “was confused and
very nervous.” When asked about other inconsistencies be‐
tween her testimony and the credible‐fear interview—incon‐
sistencies regarding the timing and location of events, and
whether Holguin had ever hit her son—Jimenez answered
that her statements must have been “misunderstood” or “mis‐
interpreted.” During her testimony, Jimenez made clear that
she was ashamed to tell others of the sexual abuse she had
experienced.
In support of her claims for relief, Jimenez submitted over
400 pages of documentary evidence, including several docu‐
ments related to the 2007 sexual assault: the police complaint
she had filed against Holguin; a doctor’s report that noted
bruises and scratches on Jimenez’s body, as well as “visible
signs and marks of a strangulation attempt” and a “torn inner
and outer labia of the vagina, evidencing penetration by force
or with resistance on the part of the victim”; and a psycholo‐
gist’s report that states that Jimenez “presents signs and
symptoms of tension, worry, fear for her life and the lives of
6 No. 15‐2603
her family” and recommends “[t]hat she be referred immedi‐
ately to group therapy” to “help her overcome the trauma.”
She also submitted an affidavit from her mother, accompa‐
nied by police complaints that the mother had filed against
Holguin, affidavits from family members and friends, and nu‐
merous reports and articles documenting the epidemic of do‐
mestic violence and sexual assault against women in the Do‐
minican Republic.
The IJ concluded that Jimenez was ineligible for asylum
and withholding of removal because she was not credible and
lacked evidence to corroborate her testimony. The IJ stated
that the adverse credibility finding was based largely on
“glaring inconsistencies” between Jimenez’s testimony before
the IJ and her statements at the credible‐fear interview regard‐
ing the timing and location of events—for example, whether
Holguin last raped her in January 2010 or several months
later, and whether that rape occurred in the woods or in her
bedroom—and whether Holguin had hit her son. The IJ re‐
jected Jimenez’s explanation that her statements during the
credible‐fear interview were misinterpreted and that she was
confused and nervous during the interview. The IJ was espe‐
cially troubled by the fact that “[b]oth the police complaint
and her credible‐fear interview indicate that [Jimenez] was
not attacked by Holguin after she returned from the dinner
party on Christmas Eve, as she testified at her hearing, but
that the violence occurred before she was able to go to the
party when Holguin blocked her path as she was leaving.”
Because the IJ found Jimenez not to be credible, the
IJ concluded that she could meet her burden of proof under
the REAL ID Act, 8 U.S.C. § 1158(b)(1)(B)(ii), only by produc‐
ing “additional evidence that corroborates her claim of past
persecution.” The IJ then found her corroborating evidence
No. 15‐2603 7
insufficient to meet her burden of proof because the affidavit
from her mother was “vague,” the affidavits from Jimenez’s
other family members and friends were not based on personal
knowledge, and the country conditions reports and articles
were “not particular to” Jimenez. Moreover, the IJ said,
Jimenez offered no explanation why she had not submitted
affidavits from her first husband or her then 12‐year‐old son.
On appeal to the Board, Jimenez argued, among other
things, (1) that the notes from the credible‐fear interview were
unreliable and thus could not serve as a basis for an adverse
credibility determination and (2) that the IJ erred by failing to
consider material corroborating evidence, including the med‐
ical reports documenting the physical and psychological
trauma she sustained as a result of the 2007 sexual assault,
and the police complaints filed by her mother. The Board up‐
held the IJ’s decision. With respect to the reliability of the
notes of the credible‐fear interview, the Board said only that
“there are no indications that the notes from this interview are
unreliable.” And like the IJ, the Board said nothing about the
medical reports or the police complaints filed by Jimenez’s
mother.
Before addressing the arguments Jimenez makes in this
court, we pause to clarify two aspects of our review. First, the
parties disagree over whether we should review only the
Board’s decision (the government’s position) or the IJ’s deci‐
sion as supplemented by the Board’s opinion (Jimenez’s po‐
sition). Jimenez’s position is correct. Because the Board’s
opinion depends in part on the IJ’s decision but does not “ex‐
pressly adopt the IJ’s analysis in its entirety”—instead sup‐
plementing the IJ’s opinion with additional reasoning—we
8 No. 15‐2603
will review “the IJ’s decision wherever the Board has not sup‐
planted it with its own rationale” and review the Board’s
opinion “where the Board has spoken.” Sarhan v. Holder, 658
F.3d 649, 653 (7th Cir. 2011); see Zheng v. Holder, 722 F.3d 986,
989 (7th Cir. 2013). Second, we do not address whether
Jimenez has identified a valid social group for purposes of her
asylum and withholding claims. Neither the IJ nor the Board
questioned the propriety of Jimenez’s proposed social group
of Dominican women in relationships they cannot leave.
Thus, for purposes of Jimenez’s petition for review, we must
treat the proposed social group as cognizable. See R.R.D. v.
Holder, 746 F.3d 807, 809 (7th Cir. 2014); Cece v. Holder,
733 F.3d 662, 677 (7th Cir. 2013) (en banc).
We turn now to Jimenez’s argument that the Board “erred
as a matter of law” by failing to evaluate her argument that
the IJ improperly depended on unreliable notes from the
credible‐fear interview in making an adverse credibility find‐
ing. Jimenez’s contention that the notes are unreliable is based
on Moab v. Gonzales, a decision in which this court listed “fac‐
tors for consideration in determining the reliability of an asy‐
lum applicant’s preliminary interview.” 500 F.3d 656, 661
(7th Cir. 2007). Relying on Moab, Jimenez argues (as she did
before the Board), that the notes from the credible‐fear inter‐
view are unreliable because (1) they are a summary and not a
verbatim transcript, (2) the asylum officer conducting the in‐
terview didn’t ask follow‐up questions that would have clar‐
ified Jimenez’s purportedly contradictory statements, (3) the
notes indicate that Jimenez had difficulty understanding the
questions asked through the interpreter, and (4) Jimenez was
reluctant to reveal information to the asylum officer because
of past negative experiences with the government in her home
country.
No. 15‐2603 9
We agree with Jimenez that the Board erred by rejecting
her challenge to the adverse credibility determination without
analysis and that this error warrants remand. In Moab, we con‐
cluded that the agency’s credibility determination was not
supported by substantial evidence because the record of the
preliminary interview was “not a verbatim transcript,” it was
“unclear what, if any, follow‐up questions were posed,” and
it was reasonable that the applicant “would not have wanted
to mention his sexual orientation [during the interview] for
fear that revealing this information could cause further perse‐
cution as it had in his home country.” 500 F.3d at 661. The in‐
dicators that the notes of Jimenez’s credible‐fear interview are
unreliable are almost identical to the signs of unreliability that
were the basis for remand in Moab. Yet the Board made no
mention of Moab or the criteria of reliability it set forth, in‐
stead concluding summarily that “there are no indications
that the notes from [the credible‐fear interview] are unrelia‐
ble.” This mistaken legal conclusion, combined with the
Board’s lack of any explanation about how it was reached, ne‐
cessitates remand: “Remand is proper for additional analysis
if the BIA ‘has not adequately explained its result and it seems
possible to us that the agency might be compelled to reach the
opposite conclusion depending how it evaluates the record
after remand.’” Kone v. Holder, 620 F.3d 760, 764 (7th Cir. 2010)
(quoting Gomes v. Gonzales, 473 F.3d 746, 752 (7th Cir. 2007));
see Gonzales v. Thomas, 547 U.S. 183, 186–87 (2006).
The government defends the Board’s decision by stating
that remand is not necessary because “there are other indicia
of reliability”—for example, the presence of an interpreter
and Jimenez’s telling the asylum officer that she understood
the questions—and thus “the asylum officer’s summary was
10 No. 15‐2603
sufficiently reliable to support an adverse credibility determi‐
nation.” We are not persuaded by the government’s conten‐
tion that the notes are reliable, especially given the
pre‐printed disclaimer accompanying the worksheet bearing
the notes. That disclaimer makes clear that the credible‐fear
interview is not meant to be a detailed account of the events
supporting an applicant’s asylum claim:
The following notes are not a verbatim tran‐
script of this interview. These notes are rec‐
orded to assist the individual officer in making
a credible fear determination and the supervi‐
sory asylum officer in reviewing the determina‐
tion. There may be areas of the individual’s
claim that were not explored or documented for
purposes of this threshold screening.
Regardless, the government’s reliance on “other indicia of
reliability” must be rejected because it is not based on the
Board’s rationale and therefore violates the Chenery doctrine.
See SEC v. Chenery Corp., 318 U.S. 80, 87 (1943) (holding that
agency may not defend administrative decision on new
ground not set forth in its original decision); Lara v. Lynch, 789
F.3d 800, 805–06 (7th Cir. 2015); R.R.D., 746 F.3d at 809–10.
The government also attempts to excuse the Board’s fail‐
ure to address Jimenez’s evidence and legal arguments on the
basis that the Board “is not required to write ‘an exegesis’ on
every contention raised by the applicant.” But this general
principle does not excuse the Board from having to consider
an alien’s arguments “and announce its decision in terms suf‐
ficient to enable a reviewing court to perceive that it has heard
and thought and not merely reacted.’” Solis‐Chavez v. Holder,
662 F.3d 462, 469 (7th Cir. 2011) (quoting Iglesias v. Mukasey,
No. 15‐2603 11
540 F.3d 528, 531 (7th Cir. 2008)). Thus, we have frequently re‐
manded cases where the agency’s “failure to discuss poten‐
tially meritorious arguments or evidence”—here, arguments
and evidence regarding the reliability of the interview notes
that were used in making an adverse credibility finding—
“calls into question whether it adequately considered these
arguments.” Kebe v. Gonzales, 473 F.3d 855, 857 (7th Cir. 2007).
Jimenez next argues that the conclusion by the IJ and the
Board that she lacks corroborating evidence to meet her bur‐
den of proof is not supported by substantial evidence because
both the IJ and the Board improperly overlooked documents
that corroborate her testimony: the police complaints filed by
her mother as well as her medical and psychological evalua‐
tions from December 2007. Again, we agree with Jimenez that
the agency’s silence with respect to this evidence is an error
that warrants remand: “The Board must analyze rather than
ignore material evidence.” R.R.D., 746 F.3d at 810; see Escobar
v. Holder, 657 F.3d 537, 544 (7th Cir. 2011). We are especially
troubled by the agency’s failure to consider the medical re‐
port; this is a pronounced error because that report—which
was used to obtain an arrest warrant for Holguin—documents
the injuries that Jimenez suffered as a result of the 2007 attack
and thus strongly corroborates Jimenez’s testimony that Hol‐
guin beat, choked, and raped her.
The government’s attorney conceded at oral argument
that the IJ and the Board did not mention the medical report
but maintained that the agency’s silence is of no moment be‐
cause the rape is “not sufficient to establish her eligibility for
asylum as a woman who is in a relationship she cannot leave.”
This argument runs afoul of the Chenery doctrine, as the gov‐
ernment again seeks to defend the agency’s decision on a
12 No. 15‐2603
ground not articulated by the agency itself. Notwithstanding
the Chenery violation, the government’s argument is nonsen‐
sical. There is no legal support for the government’s belief that
the Board must consider only evidence that, standing alone,
establishes an alien’s eligibility for relief from removal. Ra‐
ther, the Board must analyze material evidence. R.R.D., 746
F.3d at 810; Escobar, 657 F.3d at 544. Here, there is no doubt
that the evidence ignored by the Board and the IJ is material:
The Board stated that absent credible testimony, Jimenez had
“failed to establish her burden of showing past persecution or
a well‐founded fear of persecution,” yet the medical report
documenting that Jimenez had been raped is strong evidence
of past persecution. See Sankoh v. Mukasey, 539 F.3d 456, 471
(7th Cir. 2008).
We have said enough to show why remand is necessary,
but we wish to make a final point about the agency’s credibil‐
ity assessment. Although the REAL ID Act, 8 U.S.C.
§ 1158(b)(1)(B)(iii), permits immigration judges to “base an
adverse credibility finding on any inconsistency, whether it
goes to the heart of the applicant’s claim or not,” Georgieva v.
Holder, 751 F.3d 514, 520 n.2 (7th Cir. 2014), inconsistencies
cited by immigration judges “should not be trivial,” Tawuo v.
Lynch, 799 F.3d 725, 727 (7th Cir. 2015). Here, the IJ made
much of a discrepancy in Jimenez’s statements over the pre‐
cise time that she was raped and beaten by Holguin in Decem‐
ber 2007. We fail to see how this discrepancy is anything but
trivial, given that Jimenez has consistently maintained that
Holguin raped her on Christmas Eve and that the medical re‐
port strongly backs her claim.
Because the agency erred both by failing to adequately ad‐
dress Jimenez’s argument that the notes from the
No. 15‐2603 13
credible‐fear interview are unreliable and by ignoring mate‐
rial evidence that supports her claims for asylum and with‐
holding of removal, we GRANT the petition for review and
REMAND the case to the Board for further proceedings.