F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
July 21, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
H A IM A N O T SO LO M O N ,
Petitioner,
v. No. 05-9522
ALBERTO R. GONZALES, United
States A ttorney General,
Respondent.
PETITIO N FO R R EV IEW O F TH E D EC ISIO N O F TH E
BOAR D O F IM M IGR ATION APPEALS
(Immigration File A79 417 309)
Nathan Kunz, Student Attorney, supervised by Timothy M . Hurley (Timothy M .
Hurley on the briefs), University of Denver, Sturm College of Law, Federal
Appellate Clinic, Denver, Colorado, for Petitioner.
Elizabeth A. W eishaupl, Assistant United States Attorney (W illiam J. Leone,
United States Attorney, with her on the brief), Office of the United States
Attorney, Denver, Colorado, for Respondent.
Before M cCO NNELL, A ND ER SO N, and TYM KOVICH, Circuit Judges.
M cCO NNELL, Circuit Judge.
Haimanot Solomon, a former resident of Ethiopia and Eritrea of mixed
ancestry, seeks asylum in the United States, claiming that she was expelled from
Ethiopia on account of her Eritrean paternity and was persecuted in Eritrea on
account of her Ethiopian maternity, language, and upbringing. She challenges the
decision of the Immigration Judge (IJ), which was affirmed by the Board of
Immigration Appeals (BIA), that she did not present credible claims for asylum,
restriction on removal under the Immigration and Nationality Act (INA), and
withholding of removal under the United Nations Convention Against Torture.
Because the IJ’s adverse credibility determination was not based on “substantial
evidence” and supported by “specific, cogent reasons,” we GRANT the petition
for review, VAC ATE the decision of the BIA affirming the IJ’s order, and
R EM A N D to the BIA for further proceedings.
I. Factual and Procedural Background
In 1979, Haimanot Solomon was born to an Ethiopian mother and Eritrean
father in Addis Ababa, capital of Ethiopia. 1 She lived in Ethiopia until she was
19. One night in 1998, she says, armed officers seized and imprisoned her,
because her father is Eritrean. She recounts being questioned by the police and
being taken on a three-day bus journey to the Eritrean border. At the end of the
journey, she was forced across mined ground and taken by United Nations
1
In the factual section of its brief the Government recites, as if uncontested,
all of M s. Solomon’s claims regarding the facts of this case, including that her
mother is Ethiopian and that she lived in Ethiopia until she was nineteen. Yet in
the argument section, the Government defends the IJ’s adverse credibility
determination on these points. This makes it difficult for the Court to determine
what facts the government deems to be material and disputed.
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workers to a refugee camp. M s. Solomon was then conscripted into the Eritrean
military and sent for training at Sawa, a military camp. M s. Solomon tells of
extreme mistreatment— being beaten, tied hand and foot and left facing the sun,
forced to carry containers of water back and forth, and made to sleep on the
ground amid sheep’s blood. M s. Solomon attributes this mistreatment to her
being part Ethiopian, a fact easily discovered at the military camp because she
had not yet learned Tigrinya, the dominant language in Eritrea. After several
years of mistreatment, M s. Solomon deserted. A bus driver smuggled her to
Asmara, and from there a friend arranged for her to leave the country. On A ugust
15, 2001, she traveled to M iami with a man named Kubrum, who left her with an
Eritrean passport that was missing thirteen pages, and she was promptly taken
into custody by U.S. immigration officials. M s. Solomon was then paroled to
Denver, w here one of her sisters lives.
On February 12, 2002, M s. Solomon appeared for a hearing and requested
political asylum, restriction on removal, and relief under the Convention Against
Torture. On M ay 22, 2002, she filed her application for asylum. On September
3, 2003, the Immigration Judge (IJ) held the merits hearing for M s. Solomon’s
claims, at which she testified at length regarding her experiences and submitted
into evidence, among other materials, her Eritrean passport, an affidavit from her
half-sister corroborating her mother’s Ethiopian citizenship, and the then-current
State Department country report on Eritrea. She explained that her mistreatment
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in Eritrea was due to her mixed Ethiopian ancestry and upbringing. Her
testimony was delivered in Amharic, the principal and official language of
Ethiopia. D uring the hearing, the IJ asked whether she had any documents
showing she was from Ethiopia. M s. Solomon answered that she had possessed
an ID card, but that “when I left Ethiopia I left empty-handed [and] [w]hen I left
Eritrea I left empty-handed.” R. 162-63.
The IJ announced his oral decision at the conclusion of the hearing,
rejecting all of M s. Solomon’s claims for relief. The decision was based entirely
on an adverse credibility finding. The IJ apparently disbelieved M s. Solomon’s
testimony that one of her parents is Ethiopian and that she was raised in Ethiopia.
The IJ expressed no skepticism regarding M s. Solomon’s account of her
mistreatment in Eritrea.
M s. Solomon filed an appeal with the B oard of Immigration Appeals (BIA).
As attachments to her brief, she submitted substantial evidence of her Ethiopian
parentage and upbringing: a report card from the Ethiopian M inistry of Education,
a baptismal certificate from the Ethiopian Orthodox Tewahedo Church, a
statement from an Ethiopian official that she was the daughter of M rs. Adanech
Alelmayehu of K ebele, Ethiopia, and a statement from M rs. Alelmayehu that M s.
Solomon was her daughter. The BIA affirmed the IJ’s decision in a single-
member brief opinion. The BIA did not consider the additional documentary
evidence because it w as not presented to the IJ.
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M s. Solomon then filed a timely petition for review in this Court.
II. Discussion
A . Standard of Review
M s. Solomon seeks three kinds of relief— asylum, restriction on removal,
and withholding of removal under the Convention Against Torture. To be entitled
to asylum, M s. Solomon must establish that she is a “refugee[] as defined in 8
U.S.C. § 1101(a)(42)(A ), and then persuade the Attorney General to exercise his
discretion to grant relief under 8 U.S.C. § 1158(b).” Batalova v. Ashcroft, 355
F.3d 1246, 1254 (10th Cir. 2004). To establish that she is a refugee, M s.
Solomon must show that she is unwilling or unable to return to Eritrea because of
past persecution or a “well-founded fear” of future persecution, which is “on
account of race, religion, nationality, membership in a particular social group, or
political opinion.” 8 U.SC. § 1101(a)(42)(A). If M s. Solomon cannot establish a
well-founded fear under the asylum standard, she will necessarily fail to meet the
higher standards required for restriction on removal under the INA or withholding
of removal under the Convention Against Torture. Uanreroro v. Gonzales, 443
F.3d 1197, 1202 (10th Cir. 2006).
Our review of this matter might seem to be colored by the fact that, in her
appeal to the BIA, M s. Solomon submitted such powerful documentary evidence
of her Ethiopian parentage and upbringing that there can be no serious doubt that
the IJ’s disbelief of her claim on this score was wrong. Knowing that M s.
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Solomon has provided her baptismal certificate, her Ethiopian school report card,
a letter from her mother, and a statement from an Ethiopian official that her
mother is an Ethiopian citizen, we cannot doubt that M s. Solomon is, in fact, of
partial Ethiopian parentage and was raised in Ethiopia. The remainder of her
story— that she was expelled to Eritrea on account of her father’s Eritrean
nationality, that she was conscripted into the Eritrea military, and that she was
severely abused and mistreated in the Eritrean military on account of her
perceived Ethiopian nationality— has not been questioned, at least at this stage of
the proceedings. W e are frankly surprised that the government persists in
defending the BIA’s decision, rather than acquiescing in a remand in the interest
of justice.
But as an appellate court our authority is tightly circumscribed by statute.
The question before us is not whether M s. Solomon is of Ethiopian ethnicity,
whether she suffered persecution on that account, or whether she is entitled to
asylum, but solely whether the decision of the BIA was “supported by reasonable,
substantial and probative evidence on the record as a whole.” Krastev v. INS, 292
F.3d 1268, 1275 (10th Cir. 2002); see Yuk v. Ashcroft, 355 F.3d 1222, 1233 (10th
Cir. 2004). 2 M oreover, the U.S. Citizenship and Immigration Services (formerly
2
Because the BIA affirmed in a single-member brief opinion, “we will not
affirm on grounds raised in the IJ decision unless they are relied upon by the B IA
in its affirmance,” although “w e are not precluded from consulting the IJ’s more
complete explanation of those same grounds.” Uanreroro, 443 F.3d at 1204.
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the Immigration and Naturalization Service) properly has procedural rules
governing the introduction of evidence, and under those rules the baptismal
certificate, the report card, and the statements from M s. Solomon’s mother and
the Ethiopian official were not timely submitted and are not an official part of the
record. See Matter of Fedorenko, 19 I. & N. Dec. 57, 74 (BIA 1984). M s.
Solomon’s counsel apparently did not move for a continuance before the IJ to
enable her to obtain and submit additional documentation, or move before the
BIA to reopen the proceeding for receipt of new evidence. Our task, therefore, is
to determine w hether the BIA’s affirmance of the IJ’s credibility finding against
M s. Solomon was supported by substantial evidence, based on the record as it
then existed.
The courts of appeals have frequently noted the inherent problems w ith
credibility determinations in asylum cases. See, e.g., Djouma v. Gonzales, 429
F.3d 685, 687-88 (7th Cir. 2005) (noting the difficulty of determining credibility
and the lack of empirical evidence for when applicants are lying or telling the
truth). Asylum applicants rarely speak English, and their testimony is plagued
with the uncertainties of translation and cultural misunderstanding. They are
generally unfamiliar with A merican procedures and wary of lawyers and officials;
often they are not well served even by their own legal counsel. Their escape from
persecution sometimes entailed acts of deceit and prevarication, or even bribery
or forgery, which complicates evaluation of their veracity in immigration
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proceedings. M oreover, because of their troubled relations with their native
countries, purported refugees often have difficulty in obtaining documentation to
back up their claims. See Wiransane v. Ashcroft, 366 F.3d 889, 897 (10th Cir.
2004). Accordingly, this Court has held that we will affirm a denial of asylum
based on an adverse credibility finding only if the IJ or the BIA has presented
“specific, cogent reasons” for the finding. Wiransane, 366 at 897-98 (internal
quotation marks omitted); see Chaib v. Ashcroft, 397 F.3d 1273, 1278 (10th
Cir.2005) (internal citations and quotations omitted) (“An IJ’s finding that an
applicant’s testimony is implausible may not be based upon speculation,
conjecture, or unsupported personal opinion . . . [but] must be supported by
substantial evidence in the record.”). As discussed more fully below, in most
cases lack of documentary corroboration does not, in itself, constitute substantial
evidence to support an adverse credibility determination.
B. The BIA’s Findings In This Case
One question before the IJ and the BIA was whether to believe M s.
Solomon’s claim that she is of Ethiopian nationality. As noted above, M s.
Solomon testified at length at the hearing before the IJ, unequivocally stating that
she was born to an Ethiopian mother and was raised, until the age of 19, in A ddis
Ababa. On the record, there appears no reason to be skeptical of her claim. M s.
Solomon spoke in Amharic, the principal and official language of Ethiopia, rather
than in Tigrinya, the principal language of Eritrea. The IJ does not mention
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anything in her demeanor that cast doubt on her veracity, and the IJ noted that
from the time M s. Solomon first entered the United States through the merits
hearing, she “has consistently indicated that her mother is Ethiopian.” Oral
Decision of the Immigration Judge 6. No evidence was presented that
contradicted any aspect of her story. She submitted an affidavit from her half-
sister, an American resident, in support of her Ethiopian parentage. She provided
an explanation for her lack of official documents. The IJ did not suggest that M s.
Solomon’s story is inherently implausible, and sadly it is not; the State
Department Country Report included in the record describes the beatings and
severe mistreatment inflicted on Ethiopian deportees who were also thought to be
evading military service.
The BIA offered three reasons for the adverse credibility finding in this
case: (1) “the respondent’s submission of an Eritrean passport that had several
missing pages,” (2) “the respondent’s failure to present the testimony of her
sisters, who are presently residing in the United States,” and (3) “the lack of
documentary evidence corroborating the respondent’s testimony.” Decision of the
Board of Immigration Appeals 1. Each of these reasons was elaborated by the IJ.
The third reason is the most easily disposed of. This Court has held that an
asylum applicant’s otherwise credible testimony constitutes sufficient evidence to
support an application, Uanreroro, 443 F.3d at 1205; Sviridov v. Ashcroft, 358
F.3d 722, 727 (10th Cir. 2004) (noting that “an alien’s testimony alone may
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support an application for withholding of removal or asylum”). The mere absence
of “[c]orroborating documentary evidence” for the applicant’s ethnicity, standing
alone, is not a legally sufficient basis for an adverse credibility finding.
Wiransane, 366 F.3d at 898 (reversing an adverse credibility determination that
was based on the absence of all evidence except the applicant’s testimony). In
finding M s. Solomon not credible about her mother’s nationality, “the IJ appears
to have confused lack of corroboration with lack of credibility.” Obale v.
Attorney General of the United States, — F.3d — , 2006 W L 1699954 at *7 (3d
Cir. June 22, 2006).
To be sure, there will be cases where an applicant’s failure to produce
decisive and readily available corroborating evidence is so telling, and the reasons
for failure to produce the evidence so feeble or implausible, that an IJ may
legitimately doubt the applicant’s credibility. This is not such a case. Going into
the hearing, M s. Solomon had no reason to expect that her testimony, coupled
with her fluency in Amharic and the affidavit from her half-sister, would not
suffice to support her claim of Ethiopian nationality. M oreover, her responses to
the IJ’s questions about documentation seem both plausible and reasonable:
Q. Do you have any documents to show that you are from Ethiopia?
A. I used to have an i.d. but I didn’t bring it.
Q. W ell, my question is, do you have any documents right now in
this country to prove that you are from Ethiopia?
A. Everything is in Ethiopia. M y mom has every, all the i.d.s that—
Q. Your answer is no, you don’t have any documents in this country
to prove that you are from Ethiopia?
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A. No, I have nothing here. I came with, when I left Ethiopia I left
empty handed. W hen I left Eritrea I left empty-handed. I don’t
have anything.
Tr. of Hr’g, September 3, 2003, 57-58. This Court has recognized “the inherent
difficulties a purported refugee may have in obtaining documentation to back up
his claims.” Wirasane, 366 F.3d at 897. M s. Solomon’s explanation for her lack
of documents— that she left Ethiopia and then Eritrea “empty-handed”— precisely
fits that description.
The BIA’s next reason in support of the adverse credibility determination is
that M s. Solomon entered the United States with “an Eritrean passport that had
several missing pages.” D ecision of the Board of Immigration Appeals 1. The IJ
explained the point more fully:
The passport that she had when she arrived in M iami is in the record
as Exhibit 4. The passport appears to be genuine. There are missing
pages. The passport is in the respondent’s name. It was issued
January 11 th , 2000. This would seem to contradict the respondent’s
testimony that she got the passport on the eve of her departure from
Eritrea. The passport is an Eritrean passport. The Court believes
that the possession of an Eritrean passport will indicate that the
respondent is of Eritrean citizenship. The Court has noted above that
there are missing pages in the passport. There appear to be about 10
or 12 missing pages. The pages were torn out of the passport. The
respondent was asked as to why these pages were missing from her
passport and she was unable to provide any explanation for that. The
most logical explanation for missing pages in the passport is that
they contain information which someone is seeking to obscure. W e
can’t know what is on those passport pages and yet the Court
believes that the defacement of the passport in this w ay does indicate
an intent to hide certain information either by the respondent or by
someone acting on her behalf. The passport would seem to indicate
that the respondent is of Eritrean citizenship. There is nothing in the
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documents that would indicate that that’s not correct. The Court
believes that the record in this case would show that the respondent
is of Eritrean citizenship. The background material w ould seem to
indicate that she would be eligible for such citizenship based on the
ethnicity of her father.
....
[T]he Court is then confronted with its original observation that the
respondent or someone on her behalf has been concealing
information. The Court did make this observation with respect to the
passport that had missing pages. The Court simply does not know
what information has been concealed and what has been revealed . . .
.
Oral Decision of the Immigration Judge 3-4, 7. As elaborated by the IJ, this
reason for disbelieving M s. Solomon has two components: (1) the passport
indicates that M s. Solomon is actually Eritrean, and (2) the missing pages suggest
an attempt to deceive the court.
The first subpoint is not persuasive. M s. Solomon’s citizenship is far from
clear, but the fact that she obtained an Eritrean passport through clandestine
channels proves nothing about her citizenship, one way or the other. Even if w e
take M s. Solomon’s Eritrean citizenship as established, however, it does not
undermine her claim. M s. Solomon testified to having an Ethiopian mother and
an Eritrean father, and to having spent her first nineteen years in Ethiopia and the
next several in Eritrea. She claims to have been persecuted in Eritrea on account
of her perceived Ethiopian nationality— that is, her Ethiopian parentage,
language, and upbringing— not her citizenship. The passport casts no doubt on
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that claim. M s. Solomon could be a citizen of Eritrea for official purposes, and
still be perceived and treated as an Ethiopian.
Nor do the missing thirteen pages amount to “substantial evidence” that
M s. Solomon was attempting to deceive the court with regard to her ethnicity.
According to her testimony, M s. Solomon received the passport from a man
named Kubrum who accompanied her to the M iami airport. The details are
sketchy, but it seems unlikely that M r. “K ubrum” was the Eritrean official in
charge of issuing passports. Although it would not be surprising if deception was
involved in the procurement of the passport, there is no reason to think the
purpose of the deception was to mislead the court rather than to get out of Eritrea.
See U anreroro, 443 F.3d at 1211 (“lying to gain entry to the United States may be
entirely consistent with fleeing persecution”). M s. Solomon testified that she
does not know why the pages are missing. That could suggest that M s. Solomon
is persisting in a plot to deceive U.S officials and the IJ about her past travels, or
it could be the plain and simple truth: she was given the passport as-is by
Kubrum, and she cannot tell what she does not know. In Uanreroro, 443 F.3d at
1211, we held that lying to gain entry into the U nited States “does not alone rise
to the level of ‘substantial evidence’ to support an adverse decision.” It follow s a
fortiori that deception to obtain documents necessary to escape persecution
abroad is not substantial evidence of an intent to deceive an American court.
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The final reason given by the BIA for the adverse credibility finding is M s.
Solomon’s failure to have her sisters testify in person, coupled w ith her sister’s
failure to include her alien number on her affidavit. M s. Solomon introduced an
affidavit from her half-sister Hizbawit M esgian, a resident of Aurora, Colorado.
At the merits hearing, the IJ asked about the lack of live testimony:
Q. W hy can’t your sisters come to court?
A. They are at work and they have given their testimony in writing
and I told them, there is no need for you to come there, this is w hat is
necessary, Your Honor.
Tr. of Hr’g, September 3, 2003, 75. In his oral decision, the IJ considered the
lack of live testimony a reason for the adverse credibility determination:
[S]he claims her mother is Ethiopian while her father is Eritrean.
The respondent has consistently indicated that her mother is
Ethiopian. It’s on her form I-589. She did state that in her airport
statements. There is an affidavit of Hisbowik M eskian, who is the
respondent’s half sister, and she indicates that the respondent’s
mother is from Ethiopia. Despite the consistency of these
statements, the Court is concerned that there is better evidence of the
citizenship of the respondent’s mother. No birth certificate was
provided to show the identity of the mother. Respondent’s passport
indicates that there is a national i.d. card. Perhaps that would be
helpful in this regard, but that card was not provided.
The Court is concerned, also, that the respondent does have a very
good source of information regarding her parentage and that would
be her sisters. Apparently she has two sisters in the United States.
Neither sister was present in Court to testify in support of the
respondent. The affidavit provided by the one sister does not provide
her alien number, although she testifies she came to the United States
as a refugee in the year 2001. W ith her alien number, with her
testimony before the Court, the veracity of her information could be
checked by reference to her own file. The Court would find her
testimony before the Court under oath, after having disclosed her
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own alien number, to have been most likely reliable. As it is, the
testimony is of very limited evidentiary value . . . .
Oral Decision of the Immigration Judge 6-7.
For much the same reasons we rejected the lack of M s. Solomon’s own
documents as substantial evidence in support of an adverse credibility
determination, we hold that the absence of live testimony by her sisters is not
substantial evidence. As discussed above, M s. Solomon’s own testimony is
legally sufficient to support her claim of Ethiopian nationality, and the IJ’s
dissatisfaction with M s. M eskian’s affidavit is simply another version of the
argument that the applicant lacks credibility because she lacks corroboration.
Indeed, in this instance, the applicant submitted corroborating evidence.
Neither the IJ nor the government’s appellate counsel has pointed us to anything
in the agency’s rules that suggests that an affidavit may not be submitted in lieu
of live testimony, or that an affidavit filed by a resident alien is inadmissible or
incredible unless the alien supplies an alien number. W e do not dispute that an IJ,
in his discretion, may request additional evidence or corroboration where
appropriate. But when an applicant for asylum has submitted relevant evidence in
compliance with the agency’s rules, the IJ may not treat the absence of additional
formalities as a basis for an adverse credibility determination without affording
the applicant a reasonable opportunity to comply with the IJ’s demands.
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Conclusion
W e therefore conclude that the reasons given by the BIA and elaborated by
the IJ are not substantial evidence for the adverse credibility finding, and we
remand to the agency for further proceedings. Elzour v. Ashcroft, 378 F.3d 1143,
1150 (10th Cir. 2004). As some time has elapsed since M s. Solomon’s initial
hearing, conditions in Eritrea may have improved or grown worse. A more recent
country report is now available from the State Department, and the IJ should
consider the current conditions in Eritrea on remand. See Wiransane, 366 F.3d at
898.
For the foregoing reasons, we GRANT the petition for review, VAC ATE
the decision of the BIA affirming the IJ’s order, and REM AND to the BIA for
further proceedings consistent with this opinion.
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