Talk privately to any Anuak people in the Ethiopian state of Gambella and it won’t be long before they speak about “the problem.” Others are terrified into silence. To Anuak and other indigenous minorities of southwestern Ethiopia, the government of Prime Minister Meles Zenawi is a ruthless military dictatorship. And almost everyone links “the problem” to Gambella’s oil. “Since the problem, we are not able to farm or to fish,” said one Anuak survivor who was shot three times. He is shy, but he will show you where one bullet entered and exited his wrist. He was shot December 13, 2003–the day the Ethiopian People’s Revolutionary Defense Forces (EPRDF) and local “highlander” militias launched their genocidal war on the Anuaks. “Highlanders” are Ethiopians who are neither Anuak nor Nuer–the indigenous peoples of the region–but predominantly Tigray and Amhara people resettled into Anuak territory from their lands in the central highlands since 1974.
Ten months after the massacres of December, 2003, the EPRDF government of Ethiopia continues to downplay the violence in southwestern Ethiopia. At the same time, the government has been rewarded with new loans, debt restructuring and debt forgiveness by the international development community. The EPRDF continues to benefit from its tight military relationship with the United States. The region is home to guerillas of the Gambella People’s Liberation Front (GPLF) and the Oromo Liberation Front (OLF) and other forces hostile to the Meles Zenawi regime. However, the EPRDF government has used the pretext of “terrorism” and “national security” to punish rural populations, and it continues to wage low-intensity warfare against innocent civilians.
Today, Gambella state is under total military occupation. Estimates place between 30,000 and 80,000 EPRDF troops deployed here, carrying out scorched-earth campaigns under the cover of “counter-terrorism.” One recent attack occurred in early September, when EPRDF soldiers reportedly pillaged the rural village of Powatalam. Some 43 people were killed, and the village was burned. At least 1,500 and perhaps as many as 2,500 Anuak civilians have died in the fighting–most of these being intellectuals, leaders, and members of the educated and student classes, who have been intentionally targeted. Hundreds of people remain unaccounted for and many are believed to have been “disappeared.” Numerous rural villages where Anuaks and other ethnic minorities generally hover in the margins of existence at the best of times have been similarly attacked, looted, and torched. Thousands and perhaps tens of thousands of Anuak homes have reportedly been burned.
Anuak women and girls are routinely raped, gang-raped and kept as sexual slaves by EPRDF forces. Girls have been shot for resisting rape, and summary executions of girls held captive for prolonged periods as sexual slaves have been reported. In the absence of Anuak men–killed, jailed or driven into exile–Anuak women and girls have been left vulnerable to such sexual atrocities. Due to the isolation of women and girls in rural areas, rapes remain substantially under-reported. Some 6,000 to 8,000 Anuak remain at refugee camps in Pochalla, Sudan; and there are an estimated 1,000 Anuak refugees in Kenya. The Disaster Preparedness and Prevention Bureau (DPPB), a regional body that works closely with international aid groups, estimated in August 2004 that approximately 25% (roughly 50,000 people) of Gambella’s population had been displaced. “Many, many men have been killed since the problem began,” says one witness. “Many men ran away into the bush and have been hunted by the soldiers. Women and girls are left undefended in their homes. They are raping many girls. They keep some women by force.” The violence has almost completely disrupted this year’s planting season, and people see famine in the coming winter months (October-March)–exacerbated by the destruction of milling machines and food stores.
According to Anuak sources relying on sympathetic oppositionists within the regime, the EPRDF plans to access the petroleum of Gambella were laid out at a top-level cabinet meeting in Addis Ababa in September 2003. Prime Minister Meles Zenawi chaired the meeting, at which the military cleansing of the Anuaks was reportedly openly discussed. Also present were Gen. Abdullah Gamada, head of the EPRDF military, Vice-Prime Minister Adisu Lagesse, and Omot Obang Olom, security chief for the Gambella region, an ethnic Anuak. Petroleum operations–heavily guarded by EPRDF troops–are rapidly moving forward.
The “Rwanda Model” In Gambella
While there is a history of communal violence between indigenous minorities in the Gambella region, evidence attests to patterns of EPRDF government provocation, pitting tribe against tribe and neighbor against neighbor. There is no evidence to support claims of communal violence between Anuaks and the local Nuer ethic group, as has been reported by the New York Times and other media, and by the EPRDF government. Ethnic cleansing appears to be sanctioned at the highest levels of the EPRDF government, and there is evidence that the violence initiated by last December’s massacres in Gambella may have been deliberately instrumented to justify a campaign against the Anuaks. December 13, 2003 marked the start of a coordinated military operation to systematically eliminate Anuaks. Sources from inside the military government’s police and intelligence network say that the code name of the military operation was: “OPERATION SUNNY MOUNTAIN.”
In a pattern reminiscent of the Interahamwe civilian militia involved in the 1994 Rwanda genocide, operations by government troops were apparently coordinated with local Highlanders, who set upon Anuak civilians with rocks, sticks, hoes, machetes, knives, axes and pangas (clubs). Witnesses described Highlanders chanting slogans as they hunted down and killed Anuaks. Some 425 Anuak people were reported killed in the initial outburst of violence, with over 200 more wounded and some 85 people unaccounted for. Since December 2003, sporadic murders and widespread rapes have continued in Gambella town, but the rural countryside is awash in blood. In February 2004, Genocide Watch and Survivors’ Rights International called for an independent inquiry into the Gambella situation. That call was ignored. Ten months after the pivotal massacres, there is no indication that the United Nations or any other formal body has undertaken an official investigation of the killings of eight UN personnel on the morning of December 13, 2003. The attack was blamed on Anuak guerillas, and precipitated the wave of violence.
The killings reportedly occurred on the road from Gambella to Itang town. Sources report that Anuak policeman Ojo Akway was amongst the first group of responders to the site of the ambush on the morning. Akway reportedly found tracks that he wanted to immediately pursue to attempt to discover those responsible for the UN killings – it was winter and the ground was amenable to tracking. The Police Commander in Gambella, Tadese Haile Selassie, is said to have ordered Akway’s execution in order to remove the problem of identifying the actual killers. Sources report that Akway was detained later that day, driven out of Gambella town, tied to a tree along the road to Abueal village, and shot in the head seven times. An informant sympathetic to Anuaks provided the information to relatives, noting that Akway’s body was disappeared, his gun was brought back to town, and no report was filed. A federal police investigator from Addis Ababa dispatched to Gambella in July was also reportedly shot and killed. Charged with determining the extent and nature of involvement of Gambella police in the December massacres, the investigator was said to have identified many Highlander police who were “fully involved” in the killing.
International and Ethiopian human rights organizations say that the killings in Gambella constituted acts of genocide, as defined by the Genocide Convention. Arbitrary arrests, illegal detentions and torture are occurring throughout Ethiopia. Arbitrary arrests and detentions of Anuak people have occurred for years prior to the recent massacres. Reports coming out of the Gambella region indicate that hundreds of people have been arbitrary arrested and illegally detained, and that these people remain under detention, subject to torture.
“Golden Spear”
Ethiopia remains a pivotal ally in the US “war against terror” in the Horn of Africa, maintaining both covert and overt military operations and programs. Beginning July 2003, forces from Pentagon’s Combined Joint Task Force-Horn of Africa (CJTF-HOA) held a three-month bilateral training exercise with Ethiopian forces at the Hurso Training Camp, northwest of Dire Dawa. The US Army’s 10th Mountain Division recently completed a three-month program to train an Ethiopian army division in counter-terrorism tactics. Operations are coordinated through the CJTF-HOA regional base in Djibouti, where the Halliburton subsidiary KBR is the prime contractor.
The CJTF-HOA region includes the total airspace and land areas of Ethiopia, Eritrea, Djibouti, Somalia, Sudan and Kenya, and the coastal waters of the Red Sea, Gulf of Aden and Indian Ocean. In May 2004, US Brigadier General Samuel T. Helland assumed command of the CJTF-HOA region. On January 21, 2004 special operations soldiers from the 3rd US Infantry Regiment–“The Old Guard,” Bravo Company–replaced the 10th Mountain Division forces at a new base established at Hurso, Ethiopia, to be used for launching local joint missions with the Ethiopian military. A new forward base named “Camp United” has also been established in the area–a “temporary training facility in rural Ethiopia” used “as a launching ground for local missions, predominately training with the Ethiopian military.”
From 1995-2000, the US provided some $1,835,000 in International Military and Education Training (IMET) deliveries to Ethiopia. Some 115 Ethiopian officers were trained under the IMET program from 1991-2001. Approximately 4,000 Ethiopian soldiers have participated in IMET since 1950. For 2002 and 2003, Ethiopia received some $2,817,000 through the IMET and Foreign Military Sales and Deliveries programs. The US also equipped, trained and supported Ethiopian troops under the Africa Regional Peacekeeping Program. Ethiopia has remained a participant of the IMET program in 2000-2004. In August 2003, the U.S. committed $28 million for international trade enhancements with Ethiopia. In 2003, US AID, working with Africare and Catholic Relief Services, was providing disaster relief to “combat famine in the drought-stricken Gambella region of Ethiopia.” The US State Department was informed about unfolding violence in the Gambella region as early as December 16, 2003, through communications to Secretary of State Colin Powell, the Overseas Citizens Division, and the US Embassy in Ethiopia.
Immediately following the February 16, 2004, release of a report by Genocide Watch and Survivor’s Rights International (“Today is the Day of Killing Anuaks”) the United States issued a formal call for “an independent investigation” into the events in Gambella. The State Department and the UN Integrated Regional Information Networks (IRIN) condemned the ongoing violence in Gambella. Each agency called for “[f]ully transparent and independent investigations by the government” that would “encourage restoration of peace in the troubled region,” and called on the Ethiopian government to investigate allegations of EPRDF involvement in atrocities. In the spring, the EPRDF government launched an “independent inquiry” into the Gambella violence. The Independent Inquiry Commission, established by the Ethiopian House of Peoples’ Representatives, reported that few members of the Ethiopian armed forces were involved in the Gambella killings. In April 1, 2004, testimony before a House of Representatives appropriations panel, US AID representatives asked Congress to approve some $80 million in funding for Ethiopia programs in FY 2005. Ethiopia was described as a “top priority” of the Bush administration. US AID boasted of programs “that lay the groundwork to establish a market-based economy hospitable to investment…”
In a letter of August 6, twelve members of the US Congress called on Prime Minister Meles Zenawi to protect citizens from harm and ensure humanitarian access to the Gambella region. Asking the Meles government to hold officials accountable for any involvement in the violence, the letter also asked for an English version of the Independent Inquiry Commission findings on situation in Gambella. On September 16, US Senator Mitch McConnell (R-KY) introduced a bill to the House Committee on Appropriations calling for substantive attention to the Anuak problem. The US Department of Defense Central Command (CENTCOM) and European Command (EUCOM) are the pivotal forces behind the “Golden Spear” anti-terrorism program initiated in 2000 to “address issues of terrorism, humanitarian crises, natural disasters, drugs trafficking and refugees in the greater horn of Africa.” “Golden Spear” members include Ethiopia, Kenya, Eritrea, Djibouti, Seychelles and Egypt. Ethiopia sponsored the July 28-30, 2003 “Golden Spear” symposium (held at Addis Ababa), designed by the DoD “to provide a forum for strategic-level dialogue on current security issues” in the region.
Ethiopian Prime Minister Meles Zenawi said “the consensus reached at the meeting was a major achievement towards the enhancement of national capacities as well as collaborative efforts to deal with disasters, thus protecting development gains the region has attained over the years.” Meetings of the Golden Spear military group occurred in June in the Seychelles, and July in Tampa, FLA. Participants in July included Ethiopia, Eritrea, Djibouti, Kenya, Uganda, Rwanda, Burundi, Democratic Republic of Congo, Tanzania and Seychelles.
Gambella Oil Rush
Sources report ten military camps in the immediate vicinity of Gambella town, with an estimated 60 to 100 troops at each. The three major camps are Terfshalaka, about seven kilometers from Gambella town on the Addis Ababa road; Mekod, at the Gambella airport; and a base in the middle of Gambella town. An estimated 60 to 75 troops can be seen at the Gambella airport. Troops are everywhere in the town. Witnesses report trucks of soldiers perpetually coming and going from Gambella along the roads into rural areas. Soldiers were seen to openly extort money and goods from civilians. Vehicles traveling along the roads are expected to stop and pick up any soldiers waiting for rides. Rights workers reportedly witnessed a church building that had been expropriated by soldiers and turned into a semi-permanent barracks. A nearby school was also expropriated and occupied.
On June 13, 2003, Malaysia’s state-owned petroleum corporation, PETRONAS, announced the signing of an exclusive 25-year oil exploration and production sharing agreement with the EPRDF government to exploit the Ogaden Basin and the “Gambella Block” or “Block G” concession. On February 17, 2004, the Ethiopian Minister of Mines announced that Malaysia’s PETRONAS will launch a natural gas exploration project in the Gambella region. Block G covers an area of 15,356 square kilometers within the Gambella Basin. According to Anuak sources, the Ethiopian government held a public meeting in Gambella in February, even as violence against Anuak in rural areas was continuing to rise. One witness testified: “They told people about the oil and how it would benefit everyone. But the Anuak said: ‘How can you talk to us about oil when people are still being killed? We don’t want to talk about the oil.’ But the government said, ‘No, we want to talk about the oil now.'”
The Zhongyuan Petroleum Exploration Bureau (ZPEB), a powerful subsidiary of China’s second largest national petroleum consortium, the China Petrochemical Corporation (SINOPEC), appears to be the principal oil firm operating in Gambella at present, under subcontract to Malaysia’s national oil company PETRONAS. The base camp for ZPEB equipment and petroleum explorations is located approximately 1.5 kilometers from the center of Gambella town on the Abobo-Gambella road. The Ethiopian site manager, Mr. Degefe, is a highlander who tersely describes himself as “responsible for making all operations and security.” The base camp is under tight security and heavily guarded by EPRDF troops. PETRONAS and the China National Petroleum Corporation currently operate in Sudan. A recent report by Human Rights Watch raises charges that the Asian oil giants have provided cover for their respective governments to ship arms and military equipment to Sudan in exchange for oil concessions granted by Khartoum.
While not cited in the above Human Rights Watch report, ZPEB operates a concession for oil and gas exploration in Block 6 in the Republic of Sudan. ZPEB also operates in petroleum extraction in the Yli Basin of China’s Xinjiang Uygur Autonomous Region, an area noted for egregious human rights violations and systematic state terror against the indigenous Uighur people. According to Human Rights Watch: “Much like Tibetans, the Uighurs in Xinjiang (western China) have struggled for cultural survival in the face of a government- supported influx by Chinese migrants, as well as harsh repression of political dissent and any expression, however lawful or peaceful, of their distinct identity.” On September 18, 2004, a notice was posted around Gambella town indicating that the Southwest Development Company (a new Highlander-owned venture) would be accepting applications for new hires to fill some 117 positions in support of “construction and petroleum related operations in Gambella region.” On September 19, 2004 another notice seeking an additional 70 workers was posted around Gambella town. The posters were stamped with the official seal of the office of the Gambella People’s National Regional State. Anuak sources in Gambella state: “The Anuak people have not been involved in the discussions about the oil, our leaders have not agreed to these projects, and they will not hire any Anuaks for these jobs. If any Anuak says anything about the oil he will be arrested.”
Crocodiles and Rats
The few reports about the situation that have appeared in the international press have misrepresented and distorted the nature of the violence. Reporters traveling to the region have relied upon the EPRDF for security and information, and attempts by Anuaks to make the truth known have largely been ignored. National Public Radio last spring described Anuaks as primitives “once went naked and ate rats.”
Marc Lacey reported from Gambella for the New York Times (June 15, 2004) simultaneous to the Ethiopian military’s ongoing scorched earth campaign against rural villages. Lacey, who arrived with a government escort–including an Ethiopian intelligence and security team comprised of perpetrators of “the problem”–related no first-hand accounts from Anuaks of the summary executions, massacres and mass rape by EPRDF soldiers. Instead, the Times opted for a picturesque story of pastoral harmony, mentioning the violence almost in passing and even noting the threat to local bathers from crocodiles. “Bath time here is a communal affair,” read Lacey’s lead. “Everyone grabs a bar of soap and heads down to the river. As they stand naked in the water a few feet from one another, lathering and rinsing in unison, people from Gambella’s various ethnic groups appear at ease. The Anuak, the Nuer and the highlanders all use the Baro River as their tub.” Just across the Baro River are Anuak villages with scars attesting to the huts that were torched–some with people inside. But these went unmentioned by the New York Times. The EPRDF military has been said to routinely dump the bodies of the disappeared in Gambella’s rivers.
ADDIS ABABA (IRIN) – Ethiopia will hold national elections for its federal parliament on 15 May 2005, officials told IRIN. Ten national and 57 regional parties will run in the polls, with results announced on 8 June 2005, officials from the National Election Board (NEB) said on Saturday.
Ethiopia’s Information Minister Bereket Simon said that the elections were likely to be fought on the issues of the economy and democratic reforms, adding that it would allow the electorate to vote on the government’s economic and development record.
“The most important issues in the 2005 elections are going to be economic progress, good governance and development,” he said. “The issue of conducting a free and fair election is going to be a priority for the government.”
International election observers have been invited into the country to monitor the polls, which were previously marred by serious irregularities. Some 38 million people are expected to vote at 35,000 polling stations in Ethiopia’s 547 constituencies, costing US $5.2 million.
Voting is a mammoth logistical exercise in the ethnically and linguistically diverse country. Ethiopia is over 1 million sq. km in size and less than half of the 70 million people can read or write.
“These will be very significant elections,” Mekonnen Wondimu, from the NEB, told IRIN. “We are a backward country so the issue of economic development will be crucial – how to develop this backward nation. On these issues the political parties differ.”
It is widely expected by analysts that the ruling Ethiopian Peoples Revolutionary Democratic Front (EPRDF) coalition of Prime Minister Meles Zenawi will retain power. They currently control 479 seats in parliament since the 2000 elections. Elections are held every five years. Affiliated parties make up the majority of the remaining seats.
The EPRDF came to power after overthrowing former ruler Mengistu Haile Mariam in 1991 following nearly two decades of guerrilla war. Opposition groups have called for electoral reform ahead of the elections, saying polling is skewed in favour of the ruling party.
Lidetu Ayalew, general secretary of the Ethiopian Democratic Party, also called for access to the state-run media to stand a chance of defeating the incumbent government. But government spokesman Zemedkun Teckle insisted the authorities want to ensure “free and fair elections”.
Addis Ababa – Ethiopian Prime Minister Meles Zenawi has averted a possible boycott of 2005 elections by opposition parties by agreeing to their demand to invite international observers, his ruling party said on Tuesday.
Ethiopia banned international observers from monitoring the last vote in 2000, restricting the observer status to Ethiopian civil societies, the then Organization of African Unity (OAU) and diplomats resident in its capital Addis Ababa.
“The ruling Ethiopian Peoples Revolutionary Democratic Front (EPRDF) has agreed to allow the international community to send observers to monitor next year’s national election,” the party said in statement issued on Tuesday at the end of a two-day meeting.
“EPRDF will work in co-operation with all opposition parties, to make next year’s national election, transparent, fair and free,” the statement said.
‘EPRDF will work in co-operation with all opposition parties’
Beyene Petors, deputy chairperson of the opposition United Ethiopian Democratic Forces (UEDF) said the decision was an attempt to placate the donor community, adding more measures were needed to ensure free and fair elections.
“The cardinal demand of the opposition parties was that the EPRDF-appointed election board be dismantled and be replaced by a non-partisan group representing none of the parties participating in the election,” Beyena said.
The EPRDF ousted Marxist dictator Mengistu Haile Mariam in 1991 and formed a broad-based transitional government of 30 political groups and enacted a new constitution before national elections in 1995.
Zenawi, the party’s secretary-general, became prime minister with executive power and was re-elected in 2000. National elections are held every five years.
ADDIS ABABA (IRIN) – The head of the National Election Board (NEB) on 24 June urged government and opposition parties in Ethiopia to ensure “free and fair” elections next year.
Asefa Biru, the NEB executive secretary, told IRIN that his organisation “will insist government closely cooperate with the election board to take measures when any official or overzealous cadre interferes”. The polls are expected to be held in May 2005, but both the government and the opposition are already gearing up to contest.
Some 38 million people are expected to vote in 547 constituencies, costing the country US $5.2 million. Sixty-seven opposition groups are expected to challenge the government, which holds 88 percent of the seats in the country’s parliament.
In the 2000 election, observers from embassies in the capital, Addis Ababa, said the national elections, while generally free and fair, had been marred by irregularities in the south of the country.
Asefa said voter education would ensure fair elections and that the NEB – which comprises seven independent officials – was training election officers. He dismissed criticisms levelled at him by opposition groups that he was “not independent” because he had been appointed by parliament and was too closely linked to the ruling party, the Ethiopian People’s Revolutionary Democratic Front.
He also rejected calls for the participation of international election observers, whom he described as “tourists”, saying they often had little understanding of the country and its languages. “Elections are a long process that don’t just start in the morning and finish in the evening. Often people who come don’t have the experience of the country,” he said, noting that he was also “reluctant” to accept funding from foreign governments to support elections in the country.
“An election that is run by foreign aid is not sustainable, because a certain standard would be set with fanciful election materials, and if that support does not continue, then the next election would be considered substandard,” Asefa said. “The integrity of the process would be in jeopardy.”
He also rejected criticism that using government officials to run an election – a method which places elections in Ethiopia amongst the cheapest in the world – could threaten the outcome. “Just because they are government officials one cannot assume they will be partial to the government,” he said.
United States Court of Appeals for the Eighth Circuit
Zewdie v. Ashcroft
Petition for review from the Board of Immigration Appeals.
Counsel who presented argument on behalf of the petitioner was Phillip F. Fishman of Minneapolis, MN.
Counsel who presented argument on behalf of the respondent was Paul Fiorino, U.S. Dept. of Justice, Office of Immigration Litigation, Washington, DC. Appearing on respondent’s brief was Virginia M. Lum.
Before MURPHY, HEANEY, and BRIGHT, Circuit Judges.
BRIGHT, Circuit Judge.
1
Genet Zewdie petitions for review of the decision of the Board of Immigration Appeals (“BIA”) denying her claims for asylum, withholding of removal, and relief under the Convention Against Torture (“Convention”). We affirm the denial of asylum and withholding of deportation, but we remand Zewdie’s claim under the Convention for further proceedings and consideration.
I. Background
2
Zewdie, a citizen of Ethiopia, entered the United States without inspection on August 25, 2000. She applied for asylum in September 2000. After learning of Zewdie’s presence in this country through her application, the Immigration and Naturalization Service instituted removal proceedings. Zewdie conceded removability and applied for asylum, withholding of removal, and relief under the Convention.
3
Zewdie claims that she was persecuted and tortured prior to leaving Ethiopia and that if she returned she would also be tortured. We begin by explaining from the records and the briefs Zewdie’s history in Ethiopia and the conditions in the country at the time she fled. Zewdie’s father belonged to the Oromo ethnic group, the largest ethnic group in Ethiopia, and became an active member in the Oromo Liberation Front (“OLF”). The Oromo people established the OLF in July 1973.1 The OLF supports autonomy or independence for the southern provinces of Ethiopia where most Oromo live. The Oromo possess distinct physical characteristics and have their own language; they live throughout Ethiopia but consider the southern province their heartland. At one time, the OLF supported the current regime headed by the Ethiopian People’s Revolutionary Democratic Front (“EPRDF”). However, the OLF withdrew its support after discovering that the EPRDF manipulated the election process. In 1993, the OLF took up arms against the government but lost to the government military force. However, the OLF remains an active clandestine organization in Ethiopia.
4
Since the uprising, the Ethiopian government has prohibited the OLF from political participation. Despite the OLF efforts, government interference with elections still occurs. According to the State Department’s 2000 report, the last election held in the southern region contained numerous irregularities, including fraud, harassment, intimidation, and political assassination. The OLF has not garnered popular support because it has failed “to organize an effective anti-government movement” within Oromo communities. Thomas P. Ofcansky & LaVerle Berry, United States Dep’t of State Ethiopia: A Country Study 247 (1993). The OLF continues to oppose the current government in Ethiopia and refuses to accept the government as a legitimate authority.
5
As a member of the OLF, her father informed the Oromo people of their rights and obligations, criticized the current government, and recruited new members. The Ethiopian government arrested Zewdie’s father and kept him imprisoned for two years for supporting the OLF. The government also captured and detained other members of her family because they supported the OLF.2
6
We now turn to evidence presented by Zewdie to the immigration judge. Zewdie claimed that she did not actively participate as a member in the OLF; however, she admitted to sympathizing with the Oromo people and supporting the work of the OLF. Zewdie testified that the Ethiopian government did not approve of her support of the OLF and retaliated against her by imprisoning her and having her fired from her job.
7
She claimed that her employer of ten years fired her for her connection to the Oromo people and the OLF. In an offer of proof, she submitted a letter from her employer stating that her termination followed the receipt of a letter from Ethiopian government officials. Zewdie believes that the letter from the government informed her employer of her Oromo heritage and her connections to the OLF.
8
Her imprisonment followed a trip to her father’s village in Mojo where she informed the Oromo living in the community of their rights and responsibilities as citizens. During her encounters with the Oromo people in Mojo, she spoke out against the Ethiopian government and encouraged the people to vote in an upcoming election for candidates that best represented the interests of the Oromo people. Members of the Oromo Peoples’ Democratic Organization (“OPDO”), an entity set up by the government to undermine the OLF, confronted Zewdie and told her to leave the area.
9
Zewdie alleges that on returning to her home in Addis Ababa, Ethiopian government officers arrested her for her political activities, including educating the Oromo living in Mojo. She testified that the government held her in Maekalawi Prison for twenty-six days before releasing her on bail. During her time in captivity, government officers beat the soles of her feet repeatedly with wire whips and sticks. At the hearing, she removed her shoes and showed the scars on her feet and ankles to the immigration judge. She further testified that after her release, the officers informed her she could not leave Addis Ababa and ordered her to report her activities to them. Zewdie disobeyed and fled Ethiopia.
10
The immigration judge questioned Zewdie’s credibility, but made no specific finding that Zewdie did not tell the whole truth. The immigration judge denied all three claims of relief on October 4, 2001. The BIA affirmed the immigration judge’s decision and questioned Zewdie’s credibility. Zewdie timely appeals the BIA’s decision to this court.
II. Discussion
11
Zewdie first argues that she qualifies for asylum or withholding of deportation. We have considered her claims regarding these issues and agree with the immigration judge that Zewdie does not qualify for either. However, Zewdie’s remaining arguments for relief under the Convention merit further consideration. See Sivakaran v. Ashcroft, 368 F.3d 1028, 1029 (8th Cir.2004) (holding that adverse decisions on claims of asylum and withholding of removal do not preclude a Convention claim); Habtemicael v. Ashcroft, 370 F.3d 774, 783 (8th Cir.2004) (remanding Convention claim after upholding denial of asylum and withholding of removal claims).
12
We give deference to the BIA’s findings of fact and overturn only if the evidence “was so compelling that no reasonable fact finder could fail to find” her eligible for relief under the Convention. See INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); Habtemicael, 370 F.3d at 779; 8 U.S.C. § 1252(b)(4)(B) (2004). Here, the evidence compels us to vacate the BIA’s decision; substantial grounds exist for believing that the Ethiopian government would torture Zewdie if she returned. See Sivakaran, 368 F.3d at 1029 (remanding because the BIA conducted insufficient fact-finding to deny the Convention claim); Habtemicael, 370 F.3d at 783 (remanding the Convention claim for further fact-finding). See also Guchshenkov v. Ashcroft, 366 F.3d 554, 560 (7th Cir.2004) (discussing the increase in reversals of BIA decisions despite the deferential standard of judicial review and criticizing immigration judges for their “systematic failure … to provide reasoned analysis for the denial of applications for asylum”).
13
Both the immigration judge and the BIA failed to credit Zewdie’s testimony and corroborating evidence. In addition, both failed to consider Zewdie’s claims in light of the United States Department of State report on Ethiopia. We remand because the immigration judge failed to articulate a reasoned analysis based on the recorded evidence for denying Zewdie’s claims. In order to put Zewdie’s testimony in context, we begin with an overview of the Convention and the conditions in Ethiopia when Zewdie left.
14
Women and children make up eighty percent of the twenty-seven million individuals displaced from their homes world-wide; of these women, twenty to thirty percent left their homes because they experienced torture in their home countries. Zewdie’s testimony puts her in this category and her treatment falls within the specific purposes behind the Convention.
15
The United Nations enacted Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment to combat the use of torture throughout the world.3 The United States ratified the Convention and it went into effect November 20, 1994. Article III of the Convention provides that a signatory country shall not “expel, return or extradite a person to another [country] where there are substantial grounds for believing that he would be in danger of being subjected to torture” in that country. Foreign Affairs Reform and Restructuring Act of 1998 § 2242, Pub.L. No. 105-277 (Oct. 21, 1998); see 22 C.F.R. § 95.1(c) (2004); Habtemicael, 370 F.3d at 780-81. The Convention defines torture as:
16
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as … punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
17
8 C.F.R. § 208.18(a)(1) (2004). Torture does not include “pain or suffering arising only from, inherent in or incidental to lawful sanctions.” 8 C.F.R. § 208.18(a)(3).
18
Before the immigration judge, Zewdie submitted the State Department’s 1997 Profile on Ethiopia. The report stated:
19
Authorities detained hundreds of persons without charge during the year, especially in the Oromiya and Somali regions, for supposed involvement with the OLF and ONLF. Many were ultimately released without an appearance before a judge. Such cases often reflect arbitrary actions by local officials, but also result from a shortage of trained and competent prosecutors and judges.
20
United States Dep’t of State, Report on Human Rights Practices, 1997. The report went on to discuss the atrocious conditions of Ethiopian prisons and also stated that “security officials sometimes beat or mistreated detainees.”4
21
With this background, we now turn to Zewdie’s specific claims. The immigration judge and the BIA denied relief under the Convention to Zewdie, a woman who claims to have suffered extraordinary physical pain at the hands of her government. In order to qualify for relief under the Convention, the applicant bears the burden of showing “that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 208.16(c)(2). To prove that it is more likely than not that the applicant would be tortured in the country of removal, “all evidence relevant to the possibility of future torture shall be considered.” 8 C.F.R. § 208.16(c)(3). Relevant evidence may include:
22
(i) Evidence of past torture inflicted upon the applicant;
23
(ii) Evidence that the applicant could relocate to a part of the country of removal where he or she is not likely to be tortured;
24
(iii) Evidence of gross, flagrant or mass violations of human rights within the country of removal, where applicable; and
25
(iv) Other relevant information regarding conditions in the country of removal.
26
Id.
27
The immigration judge and the BIA rejected Zewdie’s claims, finding that she did not meet her burden of proof and questioned her credibility.5 In evaluating credibility determinations we defer to “an immigration judge’s credibility finding where the finding is supported by a specific, cogent reason for disbelief.” Perinpanathan v. INS, 310 F.3d 594, 597 (8th Cir.2002) (citations omitted). An immigration judge can base a credibility determination on the lack of corroborating evidence if the judge also encounters inconsistencies in testimony, contradictory evidence, or inherently improbable testimony.
28
During Zewdie’s testimony in front of the immigration judge, she removed her shoes and showed the immigration judge the scars on the bottom of her feet and ankles. She testified, without contradiction, that she received these scars after being beaten repeatedly over a period of twenty-six days with wire whips and sticks. She further testified that government officers threatened her with reprisal if she left Addis Ababa. She also submitted several documents supporting her claim. For instance, she submitted an affidavit from Lulsseged Wolkeba, a former resident of Addis Ababa, Ethiopia, stating that Zewdie’s “life and security would be in great danger if she is forced to return to Ethiopia”; she submitted a letter from her brother informing her that after she left Ethiopia, the government seized her husband and took him to an unknown location.
29
Despite Zewdie’s testimony and the evidence she presented, the immigration judge and BIA found Zewdie not credible because she could not offer corroborating evidence that the scars on her feet resulted from beatings and because she did not inform the asylum officer of the beatings.6
30
It is unreasonable to expect Zewdie to meet the extraordinary level of corroborating evidence demanded by the BIA. We highly doubt the Maekalawi Prison keeps records regarding prisoner abuse of the kind suffered by Zewdie and we are doubtful that a tortured person in an Ethiopian prison would have access to a physician to verify the torture. Even if such proof existed, we observe that “[i]t is often impossible for an asylum applicant to obtain corroborating evidence from [her] home country.” Bellido v. Ashcroft, 367 F.3d 840, 844 (8th Cir.2004). Corroboration exists for Zewdie’s testimony in the scarring on her feet; nothing more is needed. See also 8 C.F.R. § 208.13(a) (“testimony of [an] applicant, if credible, may be sufficient to sustain the burden of proof without corroboration.”). As long as the “applicant’s testimony is generally consistent, rational, and believable,” inconsistencies in the testimony “need not be fatal to credibility, especially if the errors are relatively minor and isolated.”
31
Zewdie’s failure to mention her beatings to the asylum officer or indicate them on her asylum application should not be dispositive of her credibility, given the obvious translation difficulties revealed in the record.7 Such a communication failure does not rationally outweigh the overwhelming significance of the evidence presented to the immigration judge. The record is clear, the scarring on Zewdie’s feet and ankles came from being beaten. No reason exists in this record to disbelieve Zewdie.
32
We hold that the BIA failed to rationally assess Zewdie’s credibility on the torture issue. In light of the evidence presented by Zewdie, no reasonable fact finder could fail to find Zewdie eligible for relief. The evidence of past torture coupled with Zewdie’s testimony that the Ethiopian government threatened reprisal if she fled the country and the State Department’s report outlining the human abuses present in Ethiopian prisons provide substantial grounds for believing that it is more likely than not Zewdie will be tortured if forced to return to Ethiopia. For these reasons, we must overturn the BIA’s decision. On remand, we direct the BIA to assess all of the evidence and come to a reasoned conclusion based on a thorough analysis of the evidence.
III. Conclusion
33
We affirm the BIA’s determination regarding the asylum claim and the withholding of deportation claim. We vacate the BIA’s order denying relief under the Convention and remand for further consideration in accordance with this opinion.
Notes:
1
Partly taken from United States Dep’t of State,Report on Human Rights Practices, 2000; Makonnen v. INS, 44 F.3d 1378, 1381-82 (8th Cir.1995).
2
The government allegedly killed her father’s brother for his OLF activities. Government officials took her brother, possibly because he was sympathetic to the OLF, and after Zewdie arrived in the United States, her mother and Zewdie’s husband, who remained in Ethiopia, have disappeared
3
The United Nations has reported wide-spread patterns of torture and ill treatment by government officials in seventy countries, making torture a worldwide problem. Torture occurs not merely in developing countries; the use of torture has become disturbingly legitimized even in industrialized nations facing a perceived threat
4
The immigration judge all but ignored the State Department’s report, only acknowledging that the report stated that “the OLF is an illegal organization in Ethiopia, and it advocates the violent overthrow of the government.” The BIA made no mention of the report
5
Neither the immigration judge or the BIA explicitly found Zewdie not credible
6
The immigration judge in his oral opinion stated in reference to the Convention claim that:
The Court acknowledges that this is a difficult case. The respondent demonstrated some injuries to her feet. However, there is no medical report to indicate whether these injuries are consistent with the type of abuse that the respondent testified to …. In this particular case, considering all of the evidence presented by the respondent … and considering the overall lack of meaningful corroboration in this case, the Court believes the respondent has not met her burden of proof.
App. at 22-23.
The BIA’s order echoed this language:
[Zewdie] has also submitted no evidence to establish that it is more likely than not that she will be tortured in Ethiopia.
The respondent appears to contend that it should be sufficient that she has scars on her feet and that she showed the scars to the Immigration Judge. However, we agree with the Immigration Judge that given the lack of any doctor’s statement or other corroborating evidence concerning the origin of the scars, coupled with the respondent’s failure to indicate in her written application or to the asylum officer that she was beaten on her feet, the fact that she has scars is not sufficient to establish her claim.
App. at 3 (emphasis added).
7
Zewdie did not have counsel during her interview with the asylum officer. Further, the translator had difficulty translating both the asylum officer’s questions and Zewdie’s responses. In addition, during oral argument, Zewdie’s counsel noted Zewdie’s cultural differences regarding her bodily scarring
Ethiopian women are accustomed to abuses and have little redress within their government. See United States Dep’t of State, Report on Human Rights Practices, 2000. Recognizing that women are less willing to discuss abuses they suffer, the Office of International Affairs issued a memorandum instructing asylum officers on how best to interview women seeking asylum. See Memo. from Phyllis Coven, Immgr. & Naturalization Serv. Dir. of Off. of Intl. Affairs, to All INS Asylum Officers, Consideration for Asylum Officers Adjudicating Asylum Claims from Women (May 26, 1995). However, such interviewing techniques are, unfortunately not required and some have suggested asylum officers have not consistently adhered to the interviewing techniques. See Danette Gomez, Last in Line: The United States Trails Behind in Recognizing Gender Based Asylum Claims, 25 WHITTIER L. REV. 959, 963 (Summer 2004). We do not suggest, by implication or otherwise, that the approved interview techniques were not applied in Zewdie’s case.
United States Court of Appeals for the Eighth Circuit
Gemechu v. Ashcroft
1
Taddese Lencho Gemechu (“Gemechu”) seeks review of a final order of removal issued by the Board of Immigration Appeals (“BIA”). The BIA affirmed the decision of the Immigration Judge (“IJ”) that found Gemechu was not credible and that he failed to meet his burden of proof for establishing that he has a well-founded fear of persecution in his home country of Ethiopia.
I. Procedural Background
2
Gemechu entered the United States on August 29, 1998 on a student visa with authorization to remain in the country until May 31, 2000. On August 2, 2000, Gemechu filed for asylum with the Immigration and Naturalization Service (“INS”). In an October 2, 2000 Notice to Appear, the INS charged Gemechu with being subject to removal for overstaying his visa. At an initial hearing, Gemechu admitted the factual allegations in the Notice to Appear and conceded removability. However, Gemechu requested asylum under the Immigration and Nationality Act (“INA”) § 208, 8 U.S.C. § 1158, withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and relief under Article III of the Convention Against Torture.
3
The IJ held hearings on the merits on January 17, 2001 and March 12, 2001. In an order dated March 12, 2001, the IJ found Gemechu failed to provide sufficient credible evidence of a well-founded fear of future persecution and denied his application for asylum, withholding of removal, and relief under the Convention Against Torture. The IJ granted Gemechu sixty days to voluntarily depart the United States. The IJ also found Gemechu ineligible for asylum for failure to file his asylum application within one year of entering the United States.
4
On March 30, 2000, Gemechu filed a timely appeal with the BIA. The BIA affirmed the IJ’s credibility finding and ultimate conclusion that Gemechu was not eligible for asylum, but declined to adopt the IJ’s findings on timeliness.
II. Factual Background
5
Gemechu testified to the following facts. Gemechu was born on November 21, 1971 in Ghinchi, Ethiopia. His ethnicity is Oromo. His father died in about 1977 after being taken by the government. Gemechu’s mother lives in Ghinchi. She works by brewing and selling beer. She also receives pension checks from the government because Gemechu’s father was a police officer. Gemechu has two brothers and two sisters. Gemechu’s minor sisters live with Gemechu’s mother. Gemechu’s brother, Alemu, has a master’s degree in plant pathology and has worked at an agricultural research institute. Gemechu’s other brother, Melaku, was in school but then went into hiding.
6
Gemechu testified that he fears returning to Ethiopia because of his involvement in the Oromo Liberation Front (“OLF”). Gemechu has been a member of the OLF since 1989. The OLF became an illegal organization in 1992 when it withdrew from the government. At that time, Gemechu burned his OLF identification card.
7
Gemechu testified that he taught Oromo history in Ghinchi at a school during a summer break. He stated he was arrested and detained for over one month because of his teachings.
8
Gemechu attended college tuition-free and graduated first in his class from the Addis Ababa University in 1995. He then worked at the Ministry of Justice as a clerk for two months, then as a lecturer at the government-run Ethiopian Civil Service College for approximately two and a half years. Gemechu became a member of the Senate at the Ethiopian Civil Service College and was elected secretary of the Senate. During some of his time at the Ethiopian Civil Service College, Gemechu also served as a part-time lecturer at Addis Ababa University. Gemechu claims that he was secretly involved in the OLF during this time. In 1998, Gemechu received a scholarship to the University of Michigan Law School. The Ethiopian government offered him a scholarship to the Civil Service college instead. Gemechu rejected the Civil Service scholarship and was fired from his position at the College.
9
Gemechu came to the United States to pursue a graduate degree at the University of Michigan Law School. In Michigan, Gemechu had some contact with Oromos, but did not attend OLF meetings. Gemechu graduated in June 1999. He then went to live with Habtamu Birhanu Awetu (“Awetu”) in Minnesota for a year. Awetu, who testified at the March 12, 2001 hearing, stated that he knew Gemechu beginning in 1991 and that they are both members of the OLF. Gemechu testified that he was a member of the foreign relations office in the Oromo community center while living in Minnesota. During this time, he was employed in the mail room of Norwest.
10
Gemechu testified that in March 2000 he received a letter from his brother about an incident at Ambo, Ethiopia. In the letter, Melaku stated he had been beaten and detained by the government. Melaku said he was released, but is currently in hiding in Ethiopia. Melaku stated that Gemechu’s other brother Alemu was imprisoned and was possibly still imprisoned. Melaku also said that the government asked Gemechu’s family members about Gemechu’s whereabouts, though Gemechu admitted on the stand that it was “normal” for the government to ask about people. Gemechu testified that he was planning to return to Ethiopia to teach until he received this letter and became fearful that he would be persecuted should he return.
III. Statutory Background
11
“The Attorney General may grant asylum to an alien … if the Attorney General determines that such alien is a refugee.” 8 U.S.C. 1158(b)(1). A refugee is “any person who is outside any country of such person’s nationality … who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. 1101(a)(42)(A).
12
The petitioner has the burden of showing refugee status. 8 C.F.R. 208.13(a) (2004). To show a well-founded fear of persecution, the petitioner “must demonstrate a fear that is subjectively genuine and objectively reasonable. For an alien’s fear of persecution to be objectively reasonable, the fear must have basis in reality and must be neither irrational nor so speculative or general as to lack credibility.” Perinpanathan v. I.N.S., 310 F.3d 594, 598 (8th Cir.2002) (internal citation omitted).
IV. Standard of Review
13
The BIA’s decision is the final agency decision and the subject of our review. To the extent that the BIA adopted the IJ’s findings, we review those IJ findings as part of the final agency decision. Krasnopivtsev v. Ashcroft, 382 F.3d 832, 837 (8th Cir.2004).
14
“The BIA’s determination that an alien is not eligible for asylum or withholding of deportation is reviewed for substantial evidence, and may not be overturned unless `the evidence was so compelling that no reasonable fact finder could fail to find the requisite fear of persecution.'” Perinpanathan, 310 F.3d at 597 (quoting Feleke v. I.N.S., 118 F.3d 594, 598 (8th Cir.1997)); see 8 U.S.C. § 1252(b)(4)(B) (“[T]he administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude the contrary.”). In our analysis, we consider “whether, based on the record considered as a whole, the BIA’s decision was supported by reasonable, substantial, and probative evidence.” Perinpanathan, 310 F.3d at 597 (internal quotations omitted).
15
“It is well settled that `an immigration judge is in the best position to make credibility findings because he [or she] sees the witness as the testimony is given.'” Mayo v. Ashcroft, 317 F.3d 867, 871 (8th Cir.2003) (quoting Hartooni v. I.N.S., 21 F.3d 336, 342 (9th Cir.1994)). We therefore “defer[ ] to an immigration judge’s credibility finding where the finding is `supported by a specific, cogent reason for disbelief.'” Perinpanathan, 310 F.3d at 597 (quoting Ghasemimehr v. I.N.S., 7 F.3d 1389, 1391 (8th Cir.1993)).
V. Discussion
16
The IJ concluded, and the BIA affirmed, that Gemechu failed to prove he has a well-founded fear of future persecution should he return to Ethiopia. While the IJ found Gemechu’s testimony about his education and employment credible, she found his testimony about his brother’s detentions and his own membership in the OLF implausible and not credible. The IJ gave several specific, cogent reasons for disbelieving the testimony, so we must defer to the IJ’s credibility finding.
17
Among the reasons the IJ gave for not believing Gemechu’s testimony were the following. First, Gemechu failed to present any objective evidence of his membership in the OLF. He failed to present any documentation connecting him to the OLF, though Awetu was able to procure a letter corroborating his own OLF involvement in Awetu’s asylum proceeding.
18
Second, Gemechu failed to present any documentation that his brothers were detained by the government, although resources exist that could substantiate the alleged detainments. Gemechu presented one letter from his brother, Melaku, dated March 20, 2000 that claimed that Melaku, Alemu, and Gemechu’s mother had been arrested, and that Alemu had not yet been released. However, Awetu testified that Gemechu had received between five and seven letters from his brother during the time Gemechu and Awetu lived together. Gemechu failed to produce these letters that apparently would have substantiated his claims that Alemu remained in prison.
19
Third, the IJ found it implausible that the government would be searching for Gemechu because the government was aware that Gemechu had accepted a scholarship to study in the United States.
20
Fourth, the IJ considered the country conditions in Ethiopia and found it unlikely Gemechu would be persecuted for his alleged membership in the OLF. The U.S. Department of State 1999 Country Reports on Human Rights Practices for Ethiopia states that while membership in the OLF is illegal, the government draws a distinction between OLF leaders and mere members, and mere membership is not itself a cause for arrest. See Gebrehiwot v. Ashcroft, 374 F.3d 723, 726 (8th Cir. 2004) (The “IJ reasonably may rely upon the State Department’s assessment of current country conditions as they relate to the likelihood of future persecution, given the Department’s expertise in international affairs.” (internal quotations omitted)) The IJ also noted that Oromos are the largest ethnic group in Ethiopia, making up about thirty-five percent of the population.
21
Fifth, the IJ found that Gemechu had excelled in Ethiopia. He attended college tuition-free and graduated at the top of his class. He gained prestigious positions of employment with the government, and was elected to the Senate at the University at which he worked. Gemechu’s achievements undermine his claims that the government would persecute him in the future.
VI. Conclusion
22
Substantial evidence supports the BIA’s and IJ’s conclusion that Gemechu failed to demonstrate a well-founded fear of persecution. Since Gemechu has not met the standard for asylum, it follows that he has failed to meet the higher standard for withholding of removal. See Zakirov v. Ashcroft, 384 F.3d 541, 547 (8th Cir.2004). Gemechu has also failed to show that it is more likely than not that he will be tortured should he return to Ethiopia. He is therefore not entitled to relief under the Convention Against Torture. Id.
23
