Clemente-Giron v. Holder

WOLLMAN, Circuit Judge,

dissenting.

Because I disagree with the premise that fear and shame resulting from sexual assault “fail[ ] to provide any convincing explanation” for a petitioner’s reluctance to reveal her abuse, I respectfully dissent. (J.App. at 3 (BIA Decision).)

We will uphold the denial of an asylum application if “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Adverse credibility determinations must be supported by specific and cogent reasons for disbelief. Eta-Ndu v. Gonzales, 411 F.3d 977, 982 (8th Cir.2005).

The crux of the IJ and BIA’s credibility determination was Clemente-Giron’s failure to immediately disclose that she was repeatedly raped by six police officers in May 2001. Without the discrepancies associated with this- incident, the shortcomings in' Clemente-Giron’s petition are minor and do not go to the heart of her claim. They are therefore insufficient to support an adverse credibility determination. Onsongo v. Gonzales, 457 F.3d 849, 853 (8th Cir.2006) (citing Jalloh v. Gonzales, 423 F.3d 894, 898 (8th Cir.2005)).

The United Nations, the INS, and the Ninth and Seventh Circuits all recognize the impact sexual assault can have on a victim’s ability to disclose her abuse and that such reluctance should not weigh against credibility. According to the United Nations Guidelines on the Protection of Refugees, memory loss, persistent fear, self-blame, and difficulty in concentration are all symptoms exhibited by those who have been sexually assaulted. United Nations High Commissioner for Refugees, Guidelines on the Protection of Refugee Women, ¶ 72, (July 1991), at http://www. unhcr.org/publ/PUBL/3d4f915e4.pdf.

*665These Guidelines also recognize the reluctance of women to disclose such abuse to male staff. Id. ¶47. Likewise, the INS has provided guidance to their asylum officers in dealing with the same issues concerning male interviewers and memory loss. Immigration and Naturalization Servs., Memorandum: Considerations for Asylum Officers Adjudicating Asylum Claims From Women, (May 26, 1995), at http://www.state.gOv/s/l/65633.htm.

Here, Clemente-Giron relied on a man she did not know well to complete her initial asylum application on her behalf. Upon entering the United States, she spoke no English and had only a ninth grade education. She moved to Minnesota and joined a church, where she met a man named Jose who offered to assist her in her application for asylum. Jose appeared to speak English very well and together they completed her application in one night on December 20, 2001. Clemente-Giron did not have the assistance of counsel and was not informed about the asylum process or its requirements.

At her next opportunity to tell her story, Clemente-Giron was interviewed by a female asylum officer, but she spoke directly to a male translator. According to her affidavit, it was not until she retained counsel and developed a level of trust with her attorneys that she was able to share the heart of her asylum claim. At the hearing before the IJ, Clemente-Giron reluctantly repeated the details of the rapes, at one point asking the IJ if she must continue. She explained the delay in disclosure in her affidavit, saying “[e]ven today it is extremely difficult to recount the events of that night on the soccer field.... I have not spoken of these incidents to many people because it was so deeply personal and still affects me today.” She noted that she did not know Jose very well, and that even though he was helping her, she was ashamed and uncomfortable talking to him, “especially because he is a man.” At no point was Clemente-Giron asked directly if she had been raped. Cf. Bellido v. Ashcroft, 367 F.3d 840, 843 (8th Cir.2004) (noting favorably that although Bellido omitted details regarding his arrest on his application, he responded affirmatively “[w]hen the form asked directly whether he had been arrested.”) This progression is consistent with the United Nations’ and INS’s expectations concerning a woman’s ability to discuss prior sexual assault.

The Seventh and Ninth Circuits have confronted similar cases in which details of sexual assaults were omitted from an applicant’s asylum application and, in some cases, not disclosed until the hearing before the IJ. The Ninth Circuit has held that a previous failure to disclose sexual abuse “cannot reasonably be characterized as an inconsistency.” Paramasamy, 295 F.3d at 1053. “That a woman who has suffered sexual abuse at the hands of male officials does not spontaneously reveal the details of that abuse to a male interviewer does not constitute an inconsistency from which it could reasonably be inferred that she is lying.” Id. The Seventh Circuit recognized the same principles in remanding a case in which the applicant did not disclose in her application that she had been raped, concluding that an adverse credibility finding should not be based on an applicant’s “understandable reluctance to divulge information about her rapes.” Juarez-Lopez v. Gonzales, 235 Fed.Appx. 361 (7th Cir.2007) (citing Kebede, 366 F.3d at 811 and Paramasamy, 295 F.3d at 1053).

Although the IJ recognized his obligation to determine whether Clemente-Giron supplied a convincing explanation for her omissions, he did not acknowledge any more than her “attempt[] to explain the *666most serious incident ... as relating to her reluctance to describe the incident.” Moreover, the IJ relied exclusively on Kondakova v. Ashcroft, 383 F.3d 792 (8th Cir.2004), for the proposition that inconsistencies between a respondent’s testimony and the underlying asylum application may support an adverse credibility determination. Kondakova did not involve a delayed allegation of sexual assault. Further, the IJ failed to note that the applicants were highly educated, a fact that led the IJ in that case to conclude that they could “insure that the information in the application was complete and accurate.” Id. at 794-95. The IJ must recognize the potential for mistakes and omissions due to education, language, and cultural barriers. See Bellido, 367 F.3d at 843.

The remaining minor inconsistencies, though needing no explanation because they cannot form the basis of an adverse credibility determination, are easily understood in this context. One does not have to speculate that Clemente-Giron was confused by this process. The transcript of her hearing , reveals her consistent confusion with questions. During the hearing, she was asked if there had been any time during the hearing that she was asked a question that she did not understand. She responded “[t]hat happens to me quite often.” Towards the end of the hearing, after cross-examination, she asked her lawyer to clarify whether the IJ or the government lawyer was the judge. Whether Clemente-Giron’s confusion 'was due to her education, translation errors, or some other reason is not clear. The IJ did not appear to consider the cause behind her confusion, but rather focused solely on the inconsistencies it caused and ascribed an unsupported adverse motive to them. See Heng v. Gonzales, 493 F.3d 46, 49 (1st Cir.2007) (noting that errors in translation “cannot be avoided, but immigration judges must be sensitive to the complexities of receiving testimony through a translator and take into account these difficulties when assessing credibility”) (quoting Giday v. Gonzales, 434 F.3d 543, 549 n. 2 (7th Cir.2006)) (internal quotations omitted).

Unlike the cases relied upon by the Attorney General, see Fofanah v. Gonzales, 447 F.3d 1037 (8th Cir.2006); Onsongo, 457 F.3d 849; Bropleh v. Gonzales, 428 F.3d 772 (8th Cir.2005); Esaka v. Ashcroft, 397 F.3d 1105 (8th Cir.2005); Sheikh v. Gonzales, 427 F.3d 1077 (8th Cir.2005); Nyama v. Ashcroft, 357 F.3d 812 (8th Cir.2004); Mitondo v. Mukasey, 523 F.3d 784 (7th Cir.2008); Balogun v. Ashcroft, 374 F.3d 492 (7th Cir.2004), the record here is devoid of any evidence of a “calculated attempt[ ] to mislead.” Balogun, 374 F.3d at 504. The relied-upon cases only lend credence to the notion that “[mjinor discrepancies ... [that] cannot be viewed as attempts by the applicant to enhance her claims of persecution have no bearing on credibility.” Kebede v. Ashcroft, 366 F.3d 808, 811 (9th Cir.2004) (quoting Damaize-Job v. INS, 787 F.2d 1332, 1337 (9th Cir.1986)) (internal quotations omitted). In contrast, Clemente-Giron admitted when she could not remember a name or fact, and her inconsistencies are largely explained by the brutal and humiliating sexual assault that she alleges occurred at the hands of Salvadoran authorities.

For this reason, reliance on Singh v. Gonzales, 495 F.3d 553 (8th Cir.2007), for the proposition that an IJ is not compelled to accept testimony about a rape without corroboration in light of the overall credibility finding is misplaced. The credibility finding at issue in Singh also involved calculated attempts to mislead. Singh and his family provided “implausible testimony about their living arrangements in the United States,” 495 F.3d at 558, including that they lived with strangers for two *667years in California, rent-free, yet were unable to describe the location or names of highways in their own city. Id. Their second child was born in Missouri during this period, and the IJ noted that Singh became agitated when asked about the family’s time in California. Id. We found the I J’s conclusion that Singh was forum shopping to be reasonable. Id. Additionally, Singh and his wife appeared to offer contradictory testimony regarding whether key events were sparked by government abuse. Id. We concluded that in light of these problems, the IJ was not compelled to accept Singh’s allegations of government abuse that included the alleged rape of his wife by Indian police. Id. at 559.

Singh involved a myriad of deception, only one part of which was an inconsistent allegation of rape. The case before us presents only one significant inconsistency — the delayed disclosure of allegedly brutal and successive rapes. By no means should such an omission warrant immunity from an adverse credibility determination, but neither should it form the basis of such a determination in the absence of a factual analysis that takes into account and reflects an awareness of the cultural milieu that may well have given rise to the petitioner’s reluctance to initially disclose the omitted information. Accordingly, I would remand this case for an explanation that appropriately evaluates Clemente-Giron’s delayed allegation of rape and does not simply characterize her previous failure to disclose sexual abuse as an inconsistency that ipso facto justifies an adverse credibility determination.