Uwase, Jeannette v. Ashcroft, John

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 02-3676

JEANNETTE UWASE,

Petitioner,

v.

JOHN ASHCROFT, Attorney General

of the United States,

Respondent.

____________

Petition for Review of an Order

of the Board of Immigration Appeals.

No. A77 819 928

____________

ARGUED SEPTEMBER 3, 2003—DECIDED NOVEMBER 21, 2003

____________

Before POSNER, KANNE, and EVANS, Circuit Judges.

KANNE , Circuit Judge. Jeannette Uwase seeks review of

a removal order issued by the Board of Immigration

Appeals (“BIA”) summarily affirming the Immigration

Judge’s (“IJ”) denial of Uwase’s asylum application, petition

for withholding of removal, and request for relief under the

Convention Against Torture Act. Because the IJ’s adverse

credibility determinations were not based on substantial

evidence and because the IJ gave undue weight to Uwase’s

alleged lack of corroborating evidence, we vacate the

removal order and remand Uwase’s case for rehearing.

2 No. 02-3676

I. History

Uwase, a native of Rwanda, was fourteen years old when

the former Rwandan president died in an April 1994 plane

crash. Following the president’s death, members of a Hutu

militia, known as the Interahamwe, launched an ethnic

cleansing campaign against Tutsi Rwandans and those with

mixed Hutu-Tutsi tribal heritage. Tutsi rebel soldiers,

called the Rwandan Patriotic Front (“RPF”), rose up to meet

the Interahamwe, resulting in civil war.

Prior to the war, Uwase lived in the capital city, Kigali,

with her parents and seven siblings. Her father, a promi-

nent Hutu businessman, had married a Tutsi woman; thus,

Uwase and her brothers and sisters were of mixed ethnicity.

When the violence broke out and they learned they were

targeted for extermination, the family fled Kigali, believing

they could not hide their identities because of the father’s

prominence and Rwanda’s small size. In July 1994, after

moving from city to city in the hope of escaping the fighting,

Uwase’s parents heard on the radio that the war was over

and that it was safe for people to return to their homes.

Uwase and her older sister, Francine Uwamahoro, were too

frightened to go back, but her parents left with the six

younger children. Uwase and her sister fled Rwanda for the

refugee camps in the Democratic Republic of Congo

(“DRC”).

Once in the DRC, the sisters moved from camp to camp in

search of safety. Because of their mixed ethnicity, they

struggled to gain acceptance in the camps largely filled with

Hutus seeking protection from the RPF. At some point, the

sisters were separated. Uwase suffered various deprivations

during the two years she spent in the camps, and was

ultimately herded back to Kigali when her camp was

attacked by RPF soldiers in October 1996.

In Kigali, the RPF detained the sixteen-year-old Uwase in

a collection center. There they interrogated her due to her

No. 02-3676 3

mixed ethnicity and because she was found in a Hutu

refugee camp. They accused her of participating in the

Interahamwe’s 1994 genocide and subjected her to abuse,

including putting her feet in very cold water, tying her

hands and legs, threatening her with violence, and with-

holding food. They ultimately released her in December

1996, due in part to her young age.

Upon release, Uwase found her way back to her family

home. There she discovered her family gone and RPF sol-

diers occupying the house. Uwase testified that the soldiers

at first seemed friendly, and allowed her to sleep in what

used to be her room until she could find a place to go. Later

that night, though, two soldiers woke her, raped her at

gunpoint, and beat her. They accused her of taking part in

the genocide, as they had discovered she was part Hutu.

Afterwards, they confiscated her identification papers and

left her bleeding at a bus station, threatening her with

death if she told anyone what they did. According to Uwase,

the soldiers took her identification papers because if she

was found without them, she would be accused of being a

member of the Interahamwe and killed.

Uwase made her way from the bus station to the home of

her mother’s friend, Frida Umutoni. Frida allowed Uwase

to live with her in Kigali and helped her to enroll in

secondary school. The two also sought to bring the rape to

the attention of the authorities, but, according to Uwase,

none would act for fear of retribution. At some point after

coming to live with Frida, Uwase was reunited with her

older sister, Francine. They never discovered the fate of the

rest of their family, except that Frida told them their father

was killed in prison.

Uwase lived with Frida for two years until Frida and

another family friend living in the United States, Jean

Ntakirutimana, helped Uwase and her sister Francine come

to America to study English. The sisters entered the U.S. in

4 No. 02-3676

December 1998 on student visas to attend the South Bend

English Institute. Uwase, now nineteen, overstayed her

student visa, resulting in the removal proceedings and her

asylum application. She testified before the IJ that she

fears returning to Rwanda because she believes she will be

subjected to further persecution due to her mixed ethnicity

and imputed political opinion. She also fears retribution

from government soldiers because she sought to prosecute

them for raping her.

The IJ denied Uwase’s application. Although he found

Uwase’s request for asylum plausible and reasonable based

on evidence of the country conditions in Rwanda, he did not

find Uwase’s testimony internally consistent or persuasive.

The IJ concluded that she did not meet her burden of

proving she was subjected to past persecution; specifically,

he found that she did not establish that she is of mixed

Hutu-Tutsi tribal heritage.

Uwase appealed. The BIA affirmed the IJ’s determination

without opinion under its streamlining procedure. See 8

C.F.R. § 1003.1(a)(7) (formerly 8 C.F.R. § 3.1(a)(7)). Having

appropriately exhausted her administrative remedies,

Uwase now seeks review from this Court.

II. Analysis

In streamlined cases, the IJ’s decision becomes that of the

BIA for purposes of judicial review. Georgis v. Ashcroft, 328

F.3d 962, 966-67 (7th Cir. 2003). We apply the substantial

evidence standard when reviewing immigration court

decisions denying petitions for asylum and requests to

withhold deportation. Id. at 967. The BIA’s decision must be

affirmed if it is supported by “reasonable, substantial, and

probative evidence on the record considered as a whole.” Id.

(quotations omitted).

No. 02-3676 5

Here, the bulk of the evidence consists of Uwase’s tes-

timony, much of which the IJ found to be incredible and

uncorroborated. Since it is Uwase’s burden to demonstrate

she qualifies for asylum, her failure to convince the IJ of the

truth of her claim doomed her case. See Krouchevski

v. Ashcroft, 344 F.3d 670, 673 (7th Cir. 2003). The IJ’s

credibility determinations are entitled to great deference,

and we are not at liberty to overturn the agency’s decision

“simply because we would have decided the case different-

ly.” Georgis, 328 F.3d at 967 (quotations omitted). Yet, “we

will not automatically yield to the IJ’s conclusions when

they are drawn from insufficient or incomplete evidence.”

Id. at 968. Further, an IJ’s credibility determination must

be supported by “specific, cogent reasons” that “bear a

legitimate nexus to the finding.” Krouchevski, 344 F.3d at

673 (quotations omitted). Corroborating evidence is es-

sential to bolster an otherwise unconvincing case, but when

an asylum applicant does testify credibly, “it is not neces-

sary for [her] to submit corroborating evidence in order to

sustain her burden of proof.” Georgis, 328 F.3d at 969

(citing 8 C.F.R. § 208.13(a) (“The testimony of the applicant,

if credible, may be sufficient to sustain the burden of proof

without corroboration.”)).

In denying Uwase’s application for failing to prove that

she suffered persecution because of her mixed Hutu-Tutsi

ethnicity, the IJ pointed to four alleged problems with the

internal consistency and persuasiveness of her testimony:

(1) her inability to explain a stamp on a letter from Frida

Umutoni; (2) testimony inconsistent with her Form I-20

documentation; (3) testimony inconsistent with her national

identity documentation; and (4) her failure to produce her

sister Francine as a witness. We disagree with the IJ’s

conclusions based on the record before us and discuss each

issue listed above in turn.

6 No. 02-3676

A. Letter from Frida

Uwase entered as an exhibit, without objection, a letter

from Frida in support of her asylum application. In the

letter, Frida, who still resides in Kigali, wrote that follow-

ing Uwase’s departure, Frida had been subjected to inter-

rogations by local police “to answer how I helped you to

escape thou [sic] you was ‘Interahamwe’ mixed of Hutu-

Tutsi.” (A.R. at 166.) Frida goes on to state that she later

found out the two soldiers who raped Uwase were involved

in the interrogations and that they feared Uwase’s return

in case she attempted to prosecute them. Id. Frida wrote:

“Please Jeannette don’t attempt to come back here to

Kigali, because I know for sure you will be killed. After the

death of your Father, I have been trying to locate the rest

of your family, including your loving Mother unsuccessful

[sic].” Id.

The IJ found fault with the letter because it exhibited an

ink impression of a rubber stamp near the signature line.

The imprint of the rubber stamp bore the name of Uwase’s

father—Jean Bosco Gisagara—and the name of his beer

distribution business. Over the stamp someone scrawled

their signature or initials. At the hearing, Uwase could not

explain the presence of the stamp or how Frida may have

come to be in possession of it. Uwase was not asked to

identify the signature or initials, and no evidence was

presented on whose they might be. Uwase’s inability to

explain the stamp led the IJ to assume that someone from

Uwase’s family must have given Frida the stamp and that

Frida placed the stamp on the letter. From this, the IJ

deducted that Uwase’s father may not have been murdered

or her family scattered and lost, and deemed her story of

persecution based on her mixed ethnicity incredible. Thus,

the letter meant to corroborate Uwase’s otherwise consis-

tent testimony served to discredit it.

The IJ’s logic—that Uwase’s inability to explain a stamp

appearing on a letter sent from a third party in Kigali in-

No. 02-3676 7

dicates that her family may be intact and that she may not

be of mixed Hutu-Tutsi ethnicity and so did not suffer per-

secution—is simply too tenuous based on the record. See

Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002) (“Adverse

credibility determinations based on speculation or conjec-

ture, rather than on evidence in the record, are revers-

ible.”). In our review of the letter in question, we note that

the stamp bears no date and there is no testimony explain-

ing whether the stamping instrument was made prior to the

civil war or after. Even assuming, as the IJ did, that Frida

placed the stamp on the letter, there are many explanations

how she may have come to possess the stamp that do not

discredit Uwase’s story. Indeed, the IJ could have as easily

inferred that something terrible happened to Uwase’s

family; otherwise, the stamp would not have left their

possession. The IJ’s speculation regarding the significance

of the stamp, unsupported in the record, does not form a

valid, cogent reason for a negative credibility finding.

B. Form I-20 Testimony

Uwase testified before the IJ under repeated questioning

that Jean Ntakirutimana, her father’s friend, supported her

financially while in the United States. The IJ found this

testimony inconsistent with her Form I-20, which was part

of the paperwork necessary for her student visa. The Form

I-20 stated support would come from Rwanda, not the U.S.

The IJ also criticized Uwase for failing to present an

affidavit or other testimony from Jean so he could clear up

the discrepancy and otherwise confirm her story.

We consider Uwase’s allegedly conflicting testimony about

her source of support to be a minor inconsistency, if that,

having nothing to do with her claim that she feared for her

life in Rwanda. See Gao, 299 F.3d at 272 (stating that minor

discrepancies that do not “involve the heart of the asylum

8 No. 02-3676

claim” are not an adequate basis for an adverse credibility

finding); Diallo v. INS, 232 F.3d 279, 288 (2d Cir. 2000)

(holding that minor and isolated disparities in testimony

need not be fatal to credibility, especially when they do not

concern material facts).

We note that the record, which does not include a copy of

the Form I-20 in question, does not establish who filled out

the form, just that Uwase signed it. Based on the hearing

transcript description of the form, it appears to have been

in English, not in Uwase’s native language. (A.R. at 123.)

The offending information on the form appears to have been

contained in a pre-printed section regarding financial

support while studying in the U.S. A box reading “funds

from another source” was checked, with the words “sponsor

in own country” either pre-printed or written in. Id.

When asked to explain why the form differed from her

testimony that Jean, who was not in her own country but in

America, would provide the support, Uwase recounted that

Frida accompanied her to the U.S. embassy to help her

obtain her student visa and assisted with responding to the

consular officer’s questions. Uwase testified, through an

interpreter, “I don’t really know how the financial arrange-

ments were made between Freda [sic] and Jean. However,

I remember that Freda [sic] told the embassy that accom-

modation was not a problem. Jean would take care of it.”

(A.R. at 125.)

Myriad reasons exist why the form came to represent

facts differently from those testified to repeatedly and con-

sistently by Uwase. There could have been a miscom-

munication or misunderstanding if a third party filled out

the form, or a mistranslation if Uwase filled out the form,

to name a few. The IJ did not thoroughly explore these, or

any other possible explanations for the inconsistency, cast-

ing doubt on his credibility determination. See Georgis,

No. 02-3676 9

328 F.3d at 968 (“[W]e will not automatically yield to the

IJ’s conclusions when they are drawn from insufficient or

incomplete evidence.”). More importantly, whether Uwase

received financial support from someone in the United

States or someone in Rwanda does not bear directly on

whether she suffered past persecution because of her mixed

ethnicity. Corroborating testimony from Jean was therefore

unnecessary with regard to this minor point and could not

have been anticipated by Uwase.

C. Identification Documents

Uwase testified about three different identification

documents. She stated that the soldiers who raped her in

December 1996 confiscated her camp identification papers

(“camp ID”). Uwase also testified that she received her

national identification card (“national ID”) sometime after

this event, but before she started secondary school in Kigali

in July 1997. She submitted a copy of her national ID as a

hearing exhibit. The third piece of identification discussed

was a card necessary for her to enroll in secondary school in

Kigali (“school ID”). Initially, Uwase testified that Frida

helped her to obtain the national ID, but later corrected

herself and stated that Frida helped her to obtain the school

ID. According to Uwase, she needed both the national ID

and the school ID to meet school eligibility requirements.

She did not submit her school ID in support of her applica-

tion. Thinking it unimportant, she left it behind in Rwanda.

The IJ found fault with Uwase’s testimony regarding the

identification documents because he did not understand

that the camp ID and the national ID were two separate

forms of identification, although the record is clear in this

regard. Uwase testified that since the soldiers took her

camp ID, she needed to get another identity card. Instead

of getting another camp ID, she traveled to Mugasera to

10 No. 02-3676

collect her national ID. She explained, quite lucidly, under

vigorous questioning from both the government and the IJ,

that she had been processed for the national ID in Novem-

ber 1996 while in the Kigali detention camp and was given

a camp ID to serve as identification while she waited for the

national ID’s issuance. (See A.R. at 130-132; 136-137.)

When released from the Kigali detention center in Decem-

ber 1996, she was in possession of the camp ID only, which

the soldiers then confiscated. (See A.R. at 127-128; 131-132;

150.) Instead of getting a duplicate camp ID to replace the

one taken by the soldiers, sometime prior to July 1997 she

traveled to her father’s hometown, Mugasera, where her

national ID was finally given to her. (See A.R. at 128, 135-

137.) According to Uwase, the government system in place

required her to travel to her father’s hometown in order to

collect the national ID. (See A.R. at 133, 135.)

The IJ, however, gleaned from Uwase’s testimony that

she was in possession of her national ID upon release from

the camp, and it was this document the soldiers took and

which she subsequently replaced. Noting the November 20,

1996 date on the supposed “replacement” national ID sub-

mitted in support of her asylum application, the IJ ques-

tioned how a document meant to replace one taken in

December 1996 could be dated November 1996. Apparently

because the IJ remained confused about the nature of the

ID taken from Uwase by the soldiers, he did not credit

Uwase’s explanation why she received the national ID in

1997 although it had a November 20, 1996 date. The IJ also

found that Uwase’s correction that Frida helped her obtain

the school ID as opposed to the national ID impugned

Uwase’s credibility. He noted that Frida failed to confirm

this story in the letter supplied in support of Uwase’s

asylum application or to send the school ID, which Uwase

left behind in Rwanda.

Although the IJ considered Uwase’s testimony about the

three identification documents contradictory, the record

No. 02-3676 11

reads quite clearly and does not support the IJ’s adverse

credibility finding. The IJ simply made a mistake of fact

with regard to finding that the soldiers took Uwase’s na-

tional ID. Further, we do not believe that Uwase’s correc-

tion that Frida helped her to obtain her school ID as

opposed to her national ID lessens the impact of Uwase’s

testimony, which is otherwise consistent. The IJ should not

have faulted Uwase for Frida’s failure to provide corroborat-

ing evidence about the various identification papers because

neither Uwase nor Frida could have anticipated that the IJ

would be confused by Uwase’s clear recitation of the

Rwandan government’s methods for tracking its people.

D. Francine’s Failure to Appear

Uwase’s sole witness on her witness list, her sister,

Francine Uwamahoro, did not attend the hearing due to a

stomach illness. Francine had been granted political asylum

in September 1999. Despite Francine’s inability to attend,

Uwase presented no evidence describing the basis for

Francine’s asylum request, just a copy of the government’s

letter recommending approval of Francine’s petition. At the

close of the hearing, the IJ twice, without prior warning,

tried to reach Francine at home via telephone so she could

provide corroborating testimony. No one answered. When

asked if her sister was supposed to be at home that day,

Uwase answered that they had not discussed her sister’s

plans and that it was possible she was out. Uwase’s attor-

ney asked for a continuance to produce Francine only after

the evidence had closed and it became apparent, through

the IJ’s repeated telephone calls, that the IJ considered

Francine’s testimony vital to Uwase’s case. In his decision,

the IJ accorded great weight to Uwase’s inability to produce

her sister in person or on the phone or to provide any

documentary evidence regarding Francine’s asylum claim.

12 No. 02-3676

This was despite acknowledging that “[i]t is clear from the

respondent’s testimony that she had experienced persecu-

tion and acts separate from Francine’s.” (A.R. at 69.)

The IJ’s focus on Uwase’s inability to provide corroborat-

ing evidence from Francine was misdirected. As the sisters

were separated in the DRC refugee camps and not rejoined

until after Uwase found sanctuary at Frida’s, Francine

could not corroborate Uwase’s claims of persecution at the

hands of the RPF, which were central to Uwase’s asylum

claim. Francine, no doubt, endured her own horrors, but did

not witness Uwase’s.

Since Francine shared the same parents as Uwase,

Francine could have corroborated the key fact that Uwase

was of mixed Hutu-Tutsi ethnicity. Francine’s testimony on

that issue may have been duplicative, though, if the IJ had

properly considered Frida’s letter, which reflects Uwase’s

mixed heritage. Regardless, corroborative evidence on key

facts supporting an alien’s asylum claim are not necessary,

where, as we have examined here, the alien’s testimony is

otherwise credible. Georgis, 328 F.3d at 969.

Uwase explained that her sister did not appear as

planned because she was ill with stomach problems. Uwase,

who lived with her sister, did not seek a continuance at the

beginning of the hearing, arrange for her sister’s affidavit,

or offer a copy of her sister’s asylum petition in support of

her own. Although her failure to do so exhibited a lack of

diligence, we do not think it enough to cast suspicion on

Uwase’s credibility in light of how little corroboration her

sister could provide. Nor do we think it proper for the IJ to

have viewed negatively Francine’s failure to answer the

phone when called, without warning, at the close of the

hearing, considering the many possible explanations why

she was not available.

Because we believe the IJ’s decision to deny Uwase’s

application was not based on substantial evidence in light

No. 02-3676 13

of his credibility determination errors and the undue weight

given to the alleged lack of corroborating evidence, we

remand for rehearing. We note that Uwase raises two other

issues on appeal: that the IJ erred in failing to grant her a

continuance to make Francine available to testify and that

the BIA erred in summarily affirming the IJ’s decision

without reviewing the additional evidence presented on

appeal. We do not reach these issues, however, because on

rehearing, Uwase will have the opportunity to present live

testimony from her sister as well as additional documentary

evidence. Like Uwase, the government will also have an

opportunity to submit additional evidence at rehearing,

including updated evidence of country conditions.

III. Conclusion

We VACATE the BIA’s removal order and REMAND for

rehearing.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—11-21-03