Tewabe v. Gonzales

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

BIRHAN TEWABE, 
Petitioner,
v.
 No. 04-1327
ALBERTO R. GONZALES, Attorney
General,
Respondent.

On Petition for Review of an Order
of the Board of Immigration Appeals.
(A79-497-029)

Argued: November 29, 2005

Decided: April 26, 2006

Before WILKINSON, MICHAEL, and MOTZ, Circuit Judges.

Petition for review granted; vacated and remanded by published opin-
ion. Judge Michael wrote the opinion, in which Judge Wilkinson and
Judge Motz joined.

COUNSEL

ARGUED: Firooz T. Namei, MCKINNEY & NAMEI CO., L.P.A.,
Cincinnati, Ohio, for Petitioner. Shelley Rene Goad, UNITED
STATES DEPARTMENT OF JUSTICE, Office of Immigration Liti-
gation, Civil Division, Washington, D.C., for Respondent. ON
BRIEF: Peter D. Keisler, Assistant Attorney General, Civil Division,
Linda S. Wendtland, Assistant Director, UNITED STATES
2 TEWABE v. GONZALES
DEPARTMENT OF JUSTICE, Office of Immigration Litigation,
Civil Division, Washington, D.C., for Respondent.

OPINION

MICHAEL, Circuit Judge:

An immigration judge (IJ) denied the application of Birhan
Tewabe, an Ethiopian citizen, for asylum and other relief, and the
Board of Immigration Appeals (BIA) affirmed in a split decision. The
IJ denied the application after finding that Tewabe’s testimony was
implausible. Because the IJ did not provide specific and cogent rea-
sons for discrediting Tewabe’s testimony, we grant her petition for
review, vacate the BIA’s decision, and remand for further proceed-
ings.

I.

In July 2001 Tewabe submitted an application for asylum and with-
holding of removal under 8 U.S.C. §§ 1158(a)(1), 1231(b)(3), and for
relief under the Convention Against Torture, see 8 C.F.R. § 208.16(c).
At her March 2002 hearing she offered the following evidence,
mainly through her testimony and an affidavit. Tewabe is an Ethio-
pian citizen. Both of her parents are ethnic Tigrayans (Tigray is an
Ethiopian province bordering Eritrea). Tewabe’s father was born in
Asmara, which is now part of Eritrea. In 1998 Tewabe began working
as a flight attendant for Ethiopian Airlines, which is run by the Ethio-
pian government.

In mid-1998 one of Tewabe’s cousins was deported from Ethiopia
to Eritrea when authorities discovered that his father was born in what
is now Eritrea. At the time, there was armed conflict on the Ethiopia-
Eritrea border, and the Ethiopian government regularly detained and
deported Eritreans and Ethiopians of Eritrean origin without due pro-
cess. Tewabe’s father and her cousin’s father went to the office of the
Immigration Security and Refugee Affairs (ISRA) to complain about
the cousin’s deportation. When they arrived, the two men were asked
to show their identification, and ISRA officials learned that both were
born in Eritrea. They were detained and immediately deported.
 TEWABE v. GONZALES 3
When Tewabe’s father failed to return home, her mother went to
ISRA to inquire but was turned away. Tewabe’s mother contacted rel-
atives in the Tigray People’s Liberation Front (TPLF), which is a fac-
tion of the ruling coalition, the Ethiopian Peoples’ Revolutionary
Democratic Front (EPRDF). She learned that her husband (Tewabe’s
father) had been deported. Shortly thereafter, Tewabe was suspended
from her job at Ethiopian Airlines because her personnel file reflected
that her father was born in Eritrea. After two months she was permit-
ted to return to work because her mother and relatives in the TPLF
convinced airline management that she was in fact Tigrayan. Tewa-
be’s sister Hirut fled to Israel after experiencing similar problems at
her place of employment, the Ethiopian Ministry of Health, where
officials assumed she was ethnic Eritrean. Tewabe’s brother Daniel
moved to London because he had been detained on several occasions
by local officials who believed he was Eritrean.

In 1999 Tewabe learned that her cousin, who had been deported to
Eritrea, had died in an Eritrean military training camp. Shortly there-
after, while attending a work meeting at Ethiopian Airlines, Tewabe
criticized the deportations, stressing that innocent people were being
thrown out of the country. The next day, Ethiopian Airlines again sus-
pended Tewabe based on the assumption that she was Eritrean. After
three weeks she was able to return to her job, again with the help of
her mother’s relatives.

In March 2001 twelve members of the TPLF, including one of
Tewabe’s relatives, were ousted from the TPLF central committee
and from their government positions. According to Tewabe, relatives
of the dissidents became targets of government persecution. Tewabe
and her family supported the dissidents’ rights to express themselves
and to have access to the media. According to Tewabe, a TPLF audit
commission found the actions of the prime minister’s faction undem-
ocratic and illegal. The prime minister ignored the commission’s
report and began eliminating his opponents in order to secure his
power. Tewabe and her family spoke out against the government
when a dissident leader, Seye Abraha, was imprisoned. Several TPLF
members were purged and hundreds of Tigrayans were abducted,
while others, fearing for their lives, left the country.

Later, on the morning of June 22, 2001, Tewabe and several of her
family members attended a "kebele" meeting. A kebele is a neighbor-
4 TEWABE v. GONZALES
hood association that appears to be a rough equivalent of local gov-
ernment in Ethiopia. At the June 22 kebele meeting, Tewabe spoke
out against the undemocratic and oppressive actions of the prime min-
ister and his supporters. Tewabe believed that she had an obligation
to speak out, and a Tigrayan co-worker, Haptu, had encouraged her
to speak out at this particular meeting. After Tewabe had spoken at
length, an EPRDF official yelled at her and told her to sit down.
Tewabe’s brother stood up and defended her, and people at the meet-
ing began shouting at each other. Although Tewabe had spoken at
earlier kebele meetings, she had never spoken with such fervor, nor
had she witnessed such a hostile reaction. Tewabe became very
frightened and talked to her family about leaving the meeting.
Tewabe decided to leave with three of her sisters, although her
mother, who believed nothing would happen, decided to remain at the
meeting. Another sister, Almaz, stayed with her mother, and Tewa-
be’s brother, Beemnet, also stayed so that the two women would not
be alone.

Tewabe and her three sisters went directly to the house of Tewa-
be’s friend and fellow flight attendant, Nardos Fisseha. Fisseha was
scheduled to work that night on a flight leaving for the United States.
Tewabe asked Fisseha to switch flights with Tewabe so that Tewabe
could leave the country and "observe the situation from afar," J.A.
438, and Fisseha agreed. (It was "very, very common" for flight atten-
dants on Ethiopian Airlines to switch flights. J.A. 76.) Tewabe left on
Fisseha’s flight and arrived in the United States the next day, June 23,
2001. At the time, Tewabe had a "good job" in Ethiopia that she liked,
and she was engaged to be married. J.A. 74. As a flight attendant,
Tewabe had been to the United States many times before, including
about four times in 2000 and about four times in the first half of 2001.
She had always returned as scheduled and had never before applied
for asylum.

When Tewabe arrived in the United States, she went to the hotel
where the crew was staying and called home. She spoke to a maid
who reported that Tewabe’s mother, sister (Almaz), and brother
(Beemnet), all of whom had remained at the kebele meeting, had been
imprisoned. Tewabe then spoke to Almaz’s husband, who confirmed
the maid’s account. Next, Tewabe called her friend Fisseha. Fisseha
handed the phone to one of Tewabe’s other sisters, who reported that
 TEWABE v. GONZALES 5
the police had been to Fisseha’s house looking for Tewabe and her
sisters. Fisseha was hiding Tewabe’s three unincarcerated sisters from
the police, and the police became angry when they could not find
them. The following day Tewabe called Fisseha again and learned her
sisters were no longer with Fisseha. At this point Tewabe became so
frightened that she decided to remain in the United States and apply
for asylum. Two weeks later, Tewabe learned that her three sisters
had fled to Nairobi, Kenya. Tewabe submitted her application for asy-
lum and other relief on July 27, 2001, slightly over a month after she
had arrived in the United States.

Aside from her own testimony, Tewabe had limited evidence avail-
able to present at her hearing. All of Tewabe’s immediate family
members who had remained in Ethiopia, including her mother, were
in prison. The nine of her eleven siblings who were not in prison were
scattered in various countries around the world. (At least one of her
siblings has obtained refugee status.) Tewabe asked her brother-in-
law, Almaz’s husband, and Fisseha to write letters in support of her
asylum application, but neither of them did so. Fisseha refused to pro-
vide any evidence in support of the application because she had
become frightened and did not want to be involved with Tewabe any
longer. Tewabe was able to present two other witnesses at the hear-
ing. Her sister from Canada, Ghidey, testified that she had heard from
Almaz’s husband about the arrests of her family members in Ethiopia.
Ghidey also testified that Tewabe told her that she decided to remain
in the United States when she learned of the arrests. In addition, Mulu
Werede, Tewabe’s acquaintance and former co-worker at Ethiopian
Airlines, testified on her behalf. He corroborated Tewabe’s testimony
about her speaking out against deportations at a work meeting in
1999, and he said that when Tewabe arrived in the United States she
told him that she had left Ethiopia because "she made a speech
against the government in the [kebele] meeting." J.A. 102.

Tewabe submitted a number of exhibits, including news articles
stating that Prime Minister Meles Zenawi’s TPLF was still the princi-
pal faction in the EPDRF ruling coalition; her Ethiopian Airlines crew
member certificate; an Ethiopian Airlines termination of contract
dated June 29, 1999; a letter dated July 27, 2001, from the Eritrean
Relief and Refugee Commission indicating that her father had been
deported to Eritrea from Ethiopia on or about June 20, 1998; a letter
6 TEWABE v. GONZALES
dated September 25, 2001, from Tewabe’s sisters in Kenya acknowl-
edging their flight to Nairobi and their mother’s imprisonment; a let-
ter dated February 26, 2002, from Tewabe’s father stating that he had
been deported in June 1998; an Israeli document showing that a sib-
ling had been granted refugee status; a letter dated February 13, 2002,
from Tewabe’s sister Beirut (in Kenya) stating that the family was a
target of Prime Minister Zenawi’s TPLF faction because they
opposed him and that their mother, brother, and sister were impris-
oned because they were accused of supporting the dissidents; and a
document issued by the Ethiopian police, dated August 12, 2001,
summoning Tewabe for questioning on August 15, 2001.

Immediately after Tewabe’s hearing, the IJ issued an oral decision
denying her application for asylum and other relief. The IJ based his
decision on his determination that her story was not plausible.
According to the IJ,

[T]he particular accounting of the applicant to stand up at a
[kebele] meeting while there is great dissention in her coun-
try having just gone through a war, knowing of the problems
that her family had, particularly her father, to bring attention
to herself knowing others who had brought attention to
themselves had been placed in jeopardy, to place her family
at potential risk and then to abruptly leave the meeting,
change a flight, and arrive in the United States to monitor
a situation, and the very next day, or that same day, deciding
to stay and apply for asylum, is not, in the opinion of this
Court, plausible. If the accounting of the applicant is not
plausible, the Court must conclude that she does not meet
her burden of proof, and that is the conclusion of the Court.

J.A. 24. The IJ mentioned in the first part of his oral decision that
Tewabe’s case could have benefitted from more corroborating evi-
dence. In the end, however, the IJ denied relief on the ground that her
testimony was "not plausible." J.A. 24. Tewabe appealed to the BIA,
which issued a split decision affirming the IJ. Tewabe then petitioned
this court for review, arguing that the BIA’s decision must be vacated
because the IJ did not provide specific, cogent reasons for his adverse
credibility determination.
 TEWABE v. GONZALES 7
II.

To be eligible for asylum as a refugee, Tewabe must prove that she
is "unable or unwilling" to return to her home country because of
"persecution or a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or polit-
ical opinion." 8 U.S.C. § 1101(a)(42). "The testimony of the [asylum]
applicant, if credible, may be sufficient to sustain the burden of proof
without corroboration." 8 C.F.R. § 1208.13(a). Here, the IJ found that
Tewabe "d[id] not meet her burden of proof" because her "account[ ]
. . . is not plausible," J.A. 24, that is, not credible. The BIA affirmed.

We uphold the agency’s decision "unless [it is] manifestly contrary
to law." 8 U.S.C. § 1252(b)(4)(C). And agency findings of fact "are
conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary." Id. § 1252(b)(4)(B); see also INS v. Elias-
Zacarias, 502 U.S. 478, 481 & n.1 (1992). "We also defer to credibil-
ity findings that are supported by substantial evidence." Camara v.
Ashcroft, 378 F.3d 361, 367 (4th Cir. 2004). This deference is broad
but not absolute: an IJ "who rejects a witness’s positive testimony
because in his or her judgment it lacks credibility should offer a spe-
cific, cogent reason for his [or her] disbelief." Id. (quoting Figeroa v.
INS, 886 F.2d 76, 78 (4th Cir. 1989)). Examples of specific and
cogent reasons include "inconsistent statements, contradictory evi-
dence, and inherently improbable testimony; [in particular,] where
these circumstances exist in view of the background evidence on
country conditions, it is appropriate for an Immigration Judge to make
an adverse credibility determination on such a basis." In re S-M-J-,
21 I. & N. Dec. 722, 729, 1997 WL 80984 (BIA 1997) (en banc). "If
the IJ’s [adverse credibility] conclusion is not based on a specific,
cogent reason, but, instead is based on speculation, conjecture, or an
otherwise unsupported personal opinion," it cannot be upheld "be-
cause . . . it will not have been supported by substantial evidence."
Dia v. Ashcroft, 353 F.3d 228, 250 (3d Cir. 2003) (en banc).

In Camara we rejected an IJ’s adverse credibility finding to the
extent it was based on the IJ’s speculative determination that the peti-
tioner’s testimony was implausible. 378 F.3d at 369. The petitioner
(Camara) sought asylum and other relief on the ground that she had
been raped, tortured, and imprisoned because she openly opposed the
8 TEWABE v. GONZALES
government of her home country, Guinea. Id. at 363-64. At her hear-
ing Camara testified that she had escaped from prison in Guinea and
that government officials were seeking to rearrest her. She decided
that she needed to flee Guinea after members of the military broke
into a friend’s house looking for her. Before Camara left Guinea, she
went to a courthouse where a relative worked to enlist the relative’s
assistance in obtaining documentation of government actions against
her; Camara sought this information to support an eventual asylum
application. Id. at 365. The IJ found Camara’s story implausible and
discredited her testimony. The IJ stated, "It simply makes no sense
. . . that someone who had just escaped from prison would then pre-
sent themselves to a dictatorial Government legal institution." Id. at
368. We determined that "the IJ’s disbelief of Camara’s explanation
for obtaining her criminal papers was based only on speculation; there
is nothing implausible about the idea that Camara would approach a
relative for help in her troubles, even if it meant entering a courthouse
as an anonymous visitor." Id. at 369. We therefore held that the IJ’s
speculative assessment could not support her adverse credibility find-
ing. Several other courts of appeals have similarly rejected an IJ’s
adverse credibility determination that is not grounded on specific,
cogent reasons. See, e.g., Gao v. Gonzales, 424 F.3d 122, 131-32 (2d
Cir. 2005); Shire v. Ashcroft, 388 F.3d 1288, 1295-99 (9th Cir. 2004);
Dia, 353 F.3d at 250-60.

The IJ here attached the bare label "implausible" to Tewabe’s testi-
mony without providing specific and cogent reasons for doing so.
This unexplained characterization is unsustainable because Tewabe’s
testimony is not inherently implausible. There are, as we will explain,
valid reasons that would support a finding that she is credible. In this
circumstance, because the IJ failed to provide specific, cogent reasons
for his adverse credibility determination, we cannot uphold it.

First, the IJ found Tewabe’s account of the June 22, 2001, kebele
meeting to be implausible. This implausibility characterization applies
to Tewabe’s account of why she spoke out against the government at
the meeting. The IJ questioned why she would speak in light of the
political climate in Ethiopia, the persecution of some of her family
members (including her father), and the potential risk to her. These
factors might indicate that it was unwise for Tewabe to speak out, but
they do not support a finding that her explanation for deciding to
 TEWABE v. GONZALES 9
speak out was implausible. Indeed, Tewabe offered several plausible
reasons for her decision to speak out. Haptu, a co-worker at the airline
and a Tigrayan, had urged Tewabe to attend the meeting and to partic-
ipate in the discussion. He told Tewabe that she "should not be afraid
to speak out at the meeting[ ]" because it was necessary to "educate
the people and tell them about what’s going on." J.A. 53. In addition,
it made sense for Tewabe to speak in that particular forum (a kebele
meeting) because the purpose of the meeting was to "find out the
thinking of the people." J.A. 55. Tewabe also explained that she did
not think of the risks at the moment she decided to speak. Rather, she
believed she had an obligation to say something because "from day
to day the freedom to speak was being deteriorated." J.A. 58. Further-
more, to the extent the IJ labeled as implausible Tewabe’s claim that
she spoke out in spite of the risks, there is contrary evidence to sug-
gest that at least some criticism of the government was tolerated. The
U.S. State Department’s February 2001 country report on Ethiopia
stated that "several groups critical of the [Ethiopian] Government
[have] held press conferences and public meetings without retribu-
tion," although "on occasion the Government [has] restricted [the con-
stitutional] right [to discuss publicly any topic by opposing] the
activities and operations of groups critical of the Government." J.A.
121. Moreover, Tewabe had spoken out in the past and had been
encouraged to attend the June 22 kebele meeting and voice her opin-
ion.

Second, the IJ found implausible Tewabe’s sudden decision to
depart to the United States following the morning kebele meeting.
The IJ also found it implausible that Tewabe could make the depar-
ture arrangements so quickly. Again, the IJ did not offer specific and
cogent reasons for these findings. Tewabe, on the other hand, offered
specific and plausible reasons for her sudden decision and her ability
to leave quickly. She became very frightened at the kebele meeting
after the meeting turned hostile and an official yelled at her and told
her to sit down. She went to the house of her friend and fellow flight
attendant, Fisseha, and asked her to switch flights that night. It is not
hard to believe that flight attendants sometimes switch flights and are
prepared to travel on short notice. In any case, it was very common
for Ethiopian Airline attendants to switch flights, and Fisseha agreed
to do so.
10 TEWABE v. GONZALES
Third, the IJ concluded that Tewabe’s decision to apply for asylum
so soon (within a couple of days) after arriving in the United States
was not plausible. The IJ offered no basis for this conclusion and thus
did not debunk Tewabe’s straightforward account of the timing of her
decision. Tewabe’s testimony was that, upon her arrival in the United
States, she made several phone calls home. During these conversa-
tions, she learned that her mother, brother, and sister had been
arrested, that her sisters fled to Kenya, and that the Ethiopian police
were looking for her. It was not until she had these conversations,
which occurred soon after Tewabe’s arrival in the United States, that
she decided to apply for asylum.

In suggesting reasons why Tewabe’s testimony explaining her
actions could be deemed plausible, we do not purport to find that she
was a credible witness. Rather, we simply demonstrate why it was
necessary for the IJ to support any adverse credibility determination
with specific, cogent reasons. Because the IJ did not provide these
reasons, we cannot conclude that his credibility findings are supported
by substantial evidence. See Dia, 353 F.3d at 260. The case must
therefore be remanded for further proceedings.

While we have outlined key portions of Tewabe’s testimony and
searched through the IJ’s decision in vain for a specific and cogent
reason for his adverse credibility determination, we do not mean to
imply that an IJ must provide extensive reasons for each and every
item of testimony that is rejected. We make this point because our
deferential standard of review does not allow us to micromanage IJ
decisionmaking. See Blanco de Belbruno v. Ashcroft, 362 F.3d 272,
278 (4th Cir. 2004) ("[Agency] determinations concerning asylum eli-
gibility . . . are conclusive if supported by reasonable, substantial, and
probative evidence on the record considered as a whole.") (internal
quotation marks omitted) (emphasis added). Moreover, the require-
ment that an IJ provide a specific and cogent reason for an adverse
credibility finding 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." Jibril v. Gon-
zales, 423 F.3d 1129, 1135 (9th Cir. 2005). The IJ erred in this case
simply because he gave no cogent explanation based on common
 TEWABE v. GONZALES 11
sense, the record, or any other relevant factor for disbelieving
Tewabe.*

In sum, further proceedings are necessary for the agency (begin-
ning with the IJ) to determine whether Tewabe can meet her burden
of proving all of the elements of her claim for asylum or other
requested relief. These proceedings must be conducted without any
consideration of the IJ’s prior adverse credibility determination.
Accordingly, we grant the petition for review, vacate the BIA’s order
affirming the IJ’s decision, and remand the case to the BIA for further
proceedings.

PETITION FOR REVIEW GRANTED;
VACATED AND REMANDED

*When the IJ decided Tewabe’s case in 2002, he did not have the ben-
efit of section 101(a)(3)(B)(iii) in the REAL ID Act of 2005, Pub. L. No.
109-13, 119 Stat. 302, 303, which provides guidance to IJs for making
credibility determinations in asylum cases. The section, codified at 8
U.S.C. § 1158(b)(1)(B)(iii), states:
Considering the totality of the circumstances, and all relevant
factors, a trier of fact may base a credibility determination on the
demeanor, candor, or responsiveness of the applicant or witness,
the inherent plausibility of the applicant’s or witness’s account,
the consistency between the applicant’s or witness’s written and
oral statements (whenever made and whether or not under oath,
and considering the circumstances under which the statements
were made), the internal consistency of each such statement, the
consistency of such statements with other evidence of record
(including the reports of the Department of State on country con-
ditions), and any inaccuracies or falsehoods in such statements,
without regard to whether an inconsistency, inaccuracy, or false-
hood goes to the heart of the applicant’s claim, or any other rele-
vant factor. There is no presumption of credibility, however, if
no adverse credibility determination is explicitly made, the appli-
cant or witness shall have a rebuttable presumption of credibility
on appeal.
We are not called upon here to consider the effect of this new provision
because it does not apply to asylum applications like Tewabe’s filed
prior to May 11, 2005. See REAL ID Act § 101(h)(2).